Ierarhia Normativa DIP

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Normative Hierarchy in International LawAuthor(s): Dinah SheltonSource: The American Journal of International Law, Vol. 100, No. 2, (Apr., 2006), pp. 291-323Published by: American Society of International LawStable URL: http://www.jstor.org/stable/3651149Accessed: 05/08/2008 09:29

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NORMATIVE HIERARCHY IN INTERNATIONAL LAW

By Dinah Shelton *

Systems of law usually establish a hierarchy of norms based on the particular source from which the norms derive. In national legal systems, it is commonplace for the fundamental values of society to be given constitutional status and afforded precedence in the event of a conflict with norms enacted by legislation or adopted by administrative regulation; administrative rules themselves must conform to legislative mandates, while written law usually takes precedence over unwritten law and legal norms prevail over nonlegal (political or moral) rules. Norms of

equal status must be balanced and reconciled to the extent possible. The mode of legal reason-

ing applied in practice is thus naturally hierarchical, establishing relationships and order between normative statements and levels of authority.1

In the international legal system, the question of hierarchy of norms involves the fundamental nature and structure of international law and the rules of recognition by which law is dis-

tinguished from norms that are not legally binding. Scholars in recent years have debated this issue more frequently than their predecessors did during the first decades of the twentieth cen-

tury, when participants in the international legal system, the matters of international concern, and international institutions were far fewer in number. Alfred Verdross wrote ofjus cogens in 1937, but the notion of a more general "relative normativity" was first discussed and vigorously criticized by Prosper Weil in a landmark article published in the American Journal ofInterna- tional Law (AJIL) in 1983.2 Pierre-Marie Dupuy has also argued, on the basis of the Statute of the International Court of Justice (ICJ) and the sovereign equality of states, that there is no

hierarchy and that logically there can be none: international rules are equivalent, sources are

equivalent, and procedures are equivalent, all deriving from the will of states.3 In contrast, some authors point to the concept of the "community of states as a whole," mentioned in Article 53 of the Vienna Convention on the Law of Treaties (VCLT),4 as an emerging force for deter-

mining fundamental rules based on public policy,5 values, or public order (ordrepublic),6 while

* Of the Board of Editors. Martti Koskenniemi, Hierarchy in International Law: A Sketch, 8 EUR. J. INT'L L. 566 (1997).

2 Prosper Weil, Towards Relative Normativity in International Law? 77 AJIL 413 (1983).

3 PIERRE-MARIE DUPUY, DROIT INTERNATIONAL PUBLIC 14-16 (1995). 4 Vienna Convention on the Law of Treaties, openedfor signature May 23, 1969, Art. 53, 1155 UNTS 331,

reprinted in 8 ILM 679 (1969) [hereinafter VCLT]. 5 Michael Byers, Conceptualising the Relationship Between Jus Cogens and Erga Omnes Rules, 66 NORDIC

J. INT'L L. 211 (1997), posits that jus cogens rules are constitutional rules that

limit the ability of States to create or change rules of international law, and prevent States from violating fundamental rules of international public policy, when the resulting rules or violations of rules would be seriously detrimental to the international legal system and how that system, and the society it serves, define themselves.

Id. at 212. 6 SeeJOSE HUMBERTO CASTRO VILLALOBOS, LA NORMA DEJUS COGENS EN EL DERECHO INTERNACIONAL

(Mexico, 1981); Juan Antonio Carillo Salcedo, Reflections on the Hierarchy ofNorms in International Law, 8 EUR. J. INT'L L. 583, 586-88 (1997).

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THE AMERICAN JOURNAL OF INTERNATIONAL LAW

others view necessity as the basis for articulating universal norms, given the growing list of

problems that require a rapid and uniform international response.7 This essay examines the extensive debate over hierarchy of norms and sources in interna-

tional law. It focuses on assertions about the upper and lower extremes of the claimed hierarchical order: first, that there exist superior norms (jus cogens or peremptory norms), overrid-

ing other norms and binding all states, including objecting states;8 and, second, that international law includes so-called soft law, that is, normative provisions contained in non-

binding texts. With respect to the first topic, the essay examines theoretical approaches tojus cogens and shows that while the concept is widely supported in the literature, sometimes to an abusive extent, state practice and judicial opinions have been slow to recognize or give legal effect to assertions of such norms. At the same time, a perceptible trend toward discovering peremptory norms has emerged in international and national tribunals, raising a new set of

problems about the consequences of such recognition. A review of the literature as well as the jurisprudence reveals confusion over the rationale for

jus cogens norms and their source, content, and impact, as well as the interface of such norms with obligations erga omnes and international crimes. Although it may be appropriate today to

recognize fundamental norms deriving from an international public order, the extensive assertions of peremptory norms made by some writers and international tribunals, without

presenting any evidence to support the claimed superior status of the norms under con-

sideration, pose risks for the international legal order and the credibility of the authors and tribunals.

Concerning the second topic, the essay recognizes that states and international institutions

increasingly adopt norms or statements of obligation, in nonlegally binding texts.9 Conversely, they also adopt texts in legally binding form that contain vaguely worded statements of states' commitment to act "progressively," "according to their capacities," or "to the extent feasible." Commentators disagree on whether these "soft law" texts are law, quasi law, or not law at all.'0 The consequences can be significant. Effective application of the principlepacta suntservanda

proceeds from some basic agreement about the nature of"pacta." An examination of practice demonstrates that the mode of adoption does matter and that states consciously choose the form of texts to distinguish those that are legally binding from those that are not. Nonetheless, normative statements contained in nonbinding texts can generate a political impact equal at

7 Jonathan I. Charney, UniversalInternational Law, 87 AJIL 529, 543 (1993). The idea of necessity as a basis for

imperative norms is not new: EMMERICH DE VATTEL, LE DROIT DES GENS OU PRINCIPES DE LA LOI NATURELLE ?9 (1758), and CHRISTIAN WOLFF, JUS GENTIUM ?5 (1764), both state that there is a necessary law of nations, which is natural to all states, and that all treaties and customs that contravene this necessary law are illegal.

8 See, e.g., LAURI HANNIKAINEN, PEREMPTORY NORMS (JUS COGENS) IN INTERNATIONAL LAW (1988); Gennady M. Danilenko, InternationalJus Cogens: Issues of Law-making, 2 EUR. J. INT'L L. 42 (1991); Antonio G6mez Robledo, Le Ius Cogens International: Sa Genese, Sa Nature, Ses Fonctions, 172 RECUEIL DES COURS 9 (1981 III); Christian Tomuschat, Obligations Arisingfor States Without or Against Their Will, 241 RECUEIL DES COURS 195 (1993 IV). For a dissenting view, see Anthony D'Amato, It's a Bird, It's a Plane, It's Jus Cogens! 6 CONN. J. INT'L L. 1 (1990).

9 See, e.g., DOUGLAS M. JOHNSTON, CONSENT AND COMMITMENT IN THE WORLD COMMUNITY (1997). 10 See, e.g., COMMITMENT AND COMPLIANCE: THE ROLE OF NON-BINDING NORMS IN THE INTERNA-

TIONAL LEGAL SYSTEM (Dinah Shelton ed., 2000); SamuelA. Bleicher, The LegalSignificance ofRe-citation ofGen- eralAssembly Resolutions, 63 AJIL 444 (1969); Hiram E. Chodosh, Neither Treaty nor Custom: The Emergence of Declarative International Law, 26 TEX. INT'L L.J. 87 (1991); Rosalyn Higgins, The Role of Resolutions ofInterna- tional Organizations in the Process ofCreatingNorms in the International System, in INTERNATIONAL LAW AND THE INTERNATIONAL SYSTEM 21, 21 (W. E. Butler ed., 1987); G. I. Tunkin, The Role ofResolutions ofInternational Organizations in Creating Norms of International Law, in id. at 5, 12, 14, 17; Frederic L. Kirgis Jr., Custom on a SlidingScale, 81 AJIL 146 (1987); Christopher C. Joyner, U.N. GeneralAssembly Resolutions andInternationalLaw: Rethinking the Contemporary Dynamics ofNorm-Creation, 11 CAL.W. INT'L L.J. 445 (1981).

292 [Vol. 100:291

CENTENNIAL ESSAYS

times to that of legally binding instruments and can give rise to customary international law

through state practice. A third, related issue, not examined in depth in this essay, pertains more to choice of law

between conflicting norms of equivalent status, although one obvious means of resolving a conflict is to designate one norm or subject matter as hierarchically superior to others.11 The problem of conflict has grown with the "fragmentation of international law"'2 over time. As international law has expanded into new subject areas over the past century, with a corresponding proliferation of international treaties and institutions, conflicts have increasingly arisen between substantive norms or procedures within a given subject area'3 or across subject areas, necessitating means to reconcile or rank the competing rules. 4 States are finding it appropriate to designate pref- erences between norms within treaties or between different treaties,'5 or to develop choice-of-law

principles.16 Conceptual problems abound because almost every purported principle of precedence

l The primacy of the United Nations Charter is set forth in Article 103, which provides that "[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail." This

supremacy clause" has been taken to suggest that the aims and purposes of the United Nations-maintenance of

peace and security, and promotion and protection of human rights- constitute an international public order to which other treaty regimes and the international organizations giving effect to them must conform.

12 The phrase has been used by the International Law Commission, which took up the topic on the basis of a

feasibility study entitled "Risks Ensuing from Fragmentation of International Law," which was presented at its fifty- second session in 2000. The Commission subsequently established a study group to work on the issue between 2003 and 2006. Report of the International Law Commission on the Work of Its Fifty-seventh Session, UN GAOR, 60th Sess., Supp. No. 10, at 204, para. 439, UN Doc. A/60/10 (2005). During its consideration of fragmentation, the Commission received and discussed a report on the topic of hierarchy of norms. See, in this issue, Michael J. Mathe- son, The Fifty-seventh Session of the International Law Commission, 100 AJIL 416, 422 (2006).

13 Human rights agreements commonly require the balancing or reconciling of different rights, e.g., between the free exercise of religion and the rights of women, or between free speech and expressions of racial and religious hatred. Most international human rights texts establish a certain primacy among human rights norms through the use of nonderogation provisions, limitation clauses, and restrictions on reservations. To these provisions, supervisory bodies have added the suggestion that "core" rights and obligations should be given priority in implementation. For derogations provisions, see International Covenant on Civil and Political Rights (ICCPR), Dec. 16, 1966, Art. 4,999 UNTS 171; American Convention on Human Rights, Nov. 22, 1969, Art. 27, 1144 UNTS 123; and European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Art. 15,213 UNTS 221. On core human rights provisions, see the General Comments of the Committee on Economic, Social and Cultural Rights, available at <http://www.ohchr.org/english/bodies/treaty/index.htm>.

14 See, e.g., Theodor Meron, On a Hierarchy of International Human Rights, 80 AJIL 1 (1986); Bernard H. Oxman, Complementary Agreements and Compulsory Jurisdiction, 95 AJIL 277 (2001).

15 Article 103 ofthe NorthAmerican FreeTradeAgreement (NAFTA), Dec. 17,1992, Can.-Mex.-U.S., 107 Stat. 2066, 32 ILM 289, 605 (1993), reaffirms the parties' "existing rights and obligations with respect to each other under the GeneralAgreement on Tariffi and Trade [GATT] and other agreements to which such Parties are party," but the article also states that the NAFTA prevails over those agreements in the event of an inconsistency. Chapter 1, Objectives, of which Article 103 is a part, also provides that in the event of an inconsistency, certain listed international environmental agreements take precedence over the NAFTA (Art. 104), but parties must choose the actions least inconsistent with the NAFTA obligations. The NAFTA also includes an optional selection clause for NAFTA

dispute resolution procedures when the disputes concern measures adopted or maintained by a party to protect its human, animal, or plant life or health, or its environment, and raise factual issues concerning the environment, health, safety, or conservation. NAFTA, supra, Art. 2005(4).

16 The VCLT provides that generally the later-in-time treaty should prevail when the two instruments concluded

by the same parties relate to the "same subject-matter," subject to the primacy of the UN Charter. However, deter-

mining when two or more instruments relate to the same subject matter can be problematic. Interpretive rules are sometimes suggested to reconcile the conflicts that emerge, or express provisions may address the issue. Some treaties, like the Vienna Convention on Consular Relations, Apr. 24, 1963, 596 UNTS 261, expressly preserve earlier

agreements concluded by any of the parties. Conversely, some, like the Convention on the Law of the Sea, in Article 311 (1), expressly override the prior treaties. United Nations Convention on the Law of the Sea, openedforsignature Dec. 10, 1982, Art. 311(1), 1833 UNTS 397 [hereinafter LOS Convention]. Paragraph 6 of the same article provides that the states parties agree that the basic principles relating to the common heritage of mankind shall not be

subject to amendment, nor shall the parties enter into any agreement in derogation thereof. A third option, used in the 1944 Chicago Convention on Civil Aviation, Dec. 7, 1944, TIAS No. 1591, 15 UNTS 295, requires parties

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(e.g., lex specialis derogat lexgenerali) has exceptions and no rule establishes when to apply the principle and when to apply the exception.

Apart from treaty provisions, claims of primacy may be made by those involved in promot- ing or ensuring respect for a particular body of international law. Some human rights insti-

tutions, for example, have asserted the priority of human rights guarantees in general over other international law, without necessarily claiming that the entire body of law constitutesjus cogens. The UN Committee on Economic, Social and Cultural Rights, in a 1998 statement on globalization and economic, social, and cultural rights,17 declared that the realms of trade, finance, and investment are in no way exempt from human rights obligations. The Committee's concerns were raised a second time in a statement urging members of the World Trade Organi- zation (WTO) to adopt a human rights approach to trade matters, asserting that the "promotion and protection of human rights is the first responsibility of Governments."18

The Sub-Commission on the Promotion and Protection of Human Rights has similarly affirmed the "centrality and primacy of human rights obligations in all areas of governance and

development, including international and regional trade, investment and financial policies, agreements and practices."19 The Commission on Human Rights has stated that "the exercise of the basic rights of the people of debtor countries to food, housing, clothing, employment, education, health services and a healthy environment cannot be subordinated to the implementation of structural adjustment policies and economic reforms arising from the debt."20 The UN special rapporteurs on globalization and its impact on the full enjoyment of human rights forthrightly state that "[t] he primacy of human rights law over all other

regimes of international law is a basic and fundamental principle that should not be

departed from."21 The asserted primacy of all human rights law has not been reflected in state practice. If even-

tually accepted, it will reject the notion of lex specialis for trade or other fields where states can claim to be free from human rights obligations. It could also profoundly affect the work of all international organizations, which commonly claim to be governed only by their constituting legal instruments and the mandate therein conferred.

In addressing normative hierarchy as well as choice of law, there is apparently a focus on process, because the identification of legal norms and their relative normativity is achieved by con-

sidering the procedural norms that allow recognition of substantive rules. State agreement on

to denounce inconsistent agreements. GATT Article XXIV permits the establishment of customs unions and free trade areas. GeneralAgreement on Tariffs and Trade, Oct. 30, 1947, TIAS No. 1700, 55 UNTS 187. Article 31 (3) of the LOS Convention, supra, permits parties inter se to modify or suspend the operation of provisions of the Con- vention, provided that such agreements do not relate to a provision whose derogation is incompatible with the effective execution of the object and purpose of the Convention. In addition, any such agreement must not affect the application of the basic principles of the Convention or the enjoyment by other parties of their rights or the performance of their obligations. Finally, some agreements allow other treaties to enhance obligations regarding the subject matter but prohibit any lowering of standards. See, e.g., ILO Const. Art. 19(8); Berne Intellectual Property Convention, 1886, Art. 20.

17 UN Comm. on Economic, Social and Cultural Rights, Statement on Globalization, para. 5 (May 11, 1998), 6 INT'L HUM. RTS. REP. 1176 (1999), available at <http://www.globalpolicy.org/globaliz/define/unstate.htm>.

18 UN Comm. on Economic, Social and Cultural Rights, Statement to the Third Ministerial Conference of the World Trade Organization (Nov. 26, 1999), UN Doc. E/C.12/1999/9, para. 6.

19 UN Sub-comm'n on the Promotion and Protection of Human Rights, Human Rights as the Primary Objec- tive of Trade, Investment and Financial Policy, UN Doc. E/CN.4/Sub.2/RES/1998/12.

20 UN Comm'n on Human Rights, Effects of Structural Adjustment Policies and Foreign Debt on the Full Enjoyment of All Human Rights, Particularly Economic, Social and Cultural Rights, Res. 2000/82, para. 6, UN ESCOR, 56th Sess., Supp. No. 3, at 331, 333, UN Doc. E/CN.4/2000/167-E/2000/23.

21 UN Sub-comm'n on the Promotion and Protection of Human Rights, Globalization and Its Impact on the Full Enjoyment of Human Rights, preliminary report submitted byJ. Oloka-Onyango and Deepika Udagama, UN Doc. E/CN.4/Sub.2/2000/13, para. 63.

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the means to identify binding international obligations was formulated initially in the Statute of the Permanent Court of International Justice (PCIJ) and iterated in the Statute of the Inter- national Court of Justice. These texts direct that international disputes be resolved primarily through the application of international conventions and international custom.22 They make no reference to hierarchy, except by listing doctrine and judicial decisions as "subsidiary" and

evidentiary sources of law. Although the ICJ Statute is directed at the Court, it remains today the only general text in which states have acknowledged the authoritative procedures by which

they agree to be legally bound to an international norm. It remains for proponents to demonstrate the existence of an accepted hierarchy in practice or other means of creating legal norms.

This essay is organized to look first at the literature on normative hierarchy, especially as published in the American Journal oflnternational Law during its first century. It then proceeds to examine the doctrine and growing jurisprudence on peremptory norms before turning to the issue of soft law. The conclusion attempts to describe the present system and espouses the need for more rigorous presentation of evidence about the claimed superiority or legal value of specific norms, an essential taskwhen the apparent goal is to impose such norms on nonconsenting states.

I. EARLY WRITINGS ON SOURCES OF INTERNATIONAL LAW AND HIERARCHY

Articles published in the AJIL during the first decades of the twentieth century revealed enthusiasm for the codification of international law as a means of bringing more detail and cer-

tainty to obligations,23 and a consequent shift from custom to treaty as the primary instrument of law creation. Yet, for all the emphasis on positive law, many authors revealed a belief that such law derives from and is inferior to international morality or natural law precepts.24 The existence of a common reservoir of universal principles governing "civilized nations" and on which the positive law is based seems to have been taken for granted.25

22 General principles of law are a third, more rarely used, source of international law, and judicial decisions and teachings of highly qualified publicists provide evidence of the existence of a norm. See ICJ Statute Art. 38.

23 Among others who attempted such a code was David Dudley Field, who published Draft Outlines of an Inter-

national Code with some 1008 articles in 1872. See, e.g., Ernest Nys, The Codification ofInternationalLaw, 5 AJIL 871, 886 (1911). Other discussions of codification efforts from the mid-nineteenth century can be found in Amos S. Hershey, History ofInternationalLawSincethePeaceof Westphalia, 6AJIL 30,51-53 (1912); Manley O. Hudson, The Development ofInternational Law Since the War, 22 AJIL 330, 339-50 (1928); Hersch Lauterpacht, Codifi- cation and Development of nternational Law, 49 AJIL 16 (1955).

24 Nys, supra note 23, at 874 (citing German author Karl Gottlob Guenther on the requirement for custom to conform to morality). For a response that the "law of nature has played its part" and no longer has a role, see Lassa Oppenheim, The Science ofInternational Law: Its Task andMethod, 2 AJIL 313, 327-30 (1908). For a historical discussion of the view that natural law is anterior and superior to positive law, see John P. Humphrey, On the Foun- dations ofInternational Law, 39 AJIL 231 (1945).

25 The assumptions and values of the early twentieth century appear to represent considerably less than immutable natural law when evaluated one hundred years later. Consider the following:

War has had and may yet have its good issues. Its true function has been to weld families into tribes, tribes into nations and nations into larger sovereignties. It is probable that in the "grand scheme of things entire" it has not yet exhausted its proper activities. So long as the so-called inferior races exist, there must go on a somewhat different treatment of them than we accord to the superior, or else the unfit will inhabit the choice places of the earth, and crowd out the relatively more highly civilized. Either our treatment of the Indians was practically right, or we should now restore to the remaining tribes the inheritance of their fathers-a conclusion so practically absurd as to shake the premise from which it is derived.

R. Floyd Clarke, A Permanent TribunalofInternationalArbitration: Its Necessity and Value, 1 AJIL 342,348 (1907).

2006] 295


The well-known Martens clause testifies to belief in common values.26 Agreement on an international ordrepublic or set of fundamental principles can also be seen in the period fol-

lowing World War I, when international lawyers considered the trial and punishment of those who had committed war crimes or were deemed responsible for the war, including the German

emperor. A commission of the Peace Conference reported that the war carried on by the Cen- tral Powers was conducted by "barbarous or illegitimate methods in violation of the established laws and customs of war and the elementary laws of humanity."27 According to the commis-

sion, "All persons belonging to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of States, who have been guilty of offences against the laws and customs of war or the laws of humanity, are liable to criminal prosecution."28 Arti- cle 227 of the treaty with Germany thereafter provided:

The Allied and Associated Powers publicly arraign William II of Hohenzollern, for-

merly German Emperor, for a supreme offence against international morality and the sanctity of treaties. A special tribunal will be constituted to try the accused, thereby assur-

ing him the guarantees essential to the right of defence. It will be composed of five judges, one appointed by each of the following Powers: namely, the United States of America, Great Britain, France, Italy and Japan. In its decision, the tribunal will be guided by the

highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality.29

Notably, the emperor was not accused of violating the laws and customs of war, but of what would later be called "crimes against peace." One question that perplexed those considering the matter was whether or not a defense of superior orders should or would be allowed those accused of committing a war crime.30 It was argued that "justice" requires punishing the officer

responsible for the order, but also that, on the basis of accepted principles of jurisprudence, a

plea of superior orders should not exonerate the accused. International law was seen as estab-

lishing higher norms that must be obeyed. Others wrote more generally of the underlying natural principles that could guide the postwar international society and from which positive norms could be developed.31

26 The Martens clause was inserted into agreements on the laws and customs of war because "the High Contract- ing Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders." Thus, it read:

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expe- dient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the bel- ligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.

Convention (No. IV) Respecting the Laws and Customs of War on Land, with annex of Regulations, Oct. 18, 1907, pmbl., 36 Stat. 2277, 1 Bevans 631.

27 COMMISSION ON THE RESPONSIBILITY OF THE AUTHORS OF THE WAR AND ON ENFORCEMENT OF PENALTIES, REPORT PRESENTED TO THE PRELIMINARY PEACE CONFERENCE (Mar. 29, 1919), reprinted in 14 AJIL 95, 115 (1920).

28 Id. at 117. The two U.S. members of the commission took a more positivist view and dissented from the statement that individuals could be tried for having violated the "laws of humanity." Id. at 134.

29 James W. Garner, Punishment ofOffendersAgainst the Laws and Customs of War, 14AJIL 70, 91 (1920) (quoting Treaty of Peace Between the Allied and Associated Powers and Germany (Treaty of Versailles), June 28, 1919, Art. 227, 225 Consol. TS 189). The government of the Netherlands refused to extradite the emperor, and he was never tried.

30 Id. at 82-85. 31 See, e.g., Gordon E. Sherman, The NatureandSources ofInternationalLaw, 15 AJIL 349 (1921), and his earlier

article Jus Gentium and International Law, 12 AJIL 56 (1918).

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The pre-World War I belief in common values of civilized nations was challenged by the

increasing division of independent states into democratic, fascist, and communist regimes and

by the actions of some of those regimes. In a tragic recitation, James Wilford Garner in 1939 listed some of the German and Austrian professors of international law dismissed from their

positions by the Nazis, most of them on the sole basis that they were "non-Aryan."32 Among them, luminaries such as Hans Kelsen, Martin Wolff, GeorgJellinek, Walther Schiicking, and Alfred Verdross were compulsorily removed from their university positions. Verdross had just published his influential article Forbidden Treaties in International Law.33

In the aftermath of such events and the cataclysm of World War II, many saw an even greater need to articulate or reassert the fundamental higher norms of international law, which had been blatantly transgressed. Quincy Wright wrote that superior principles of justice determined by the international community formed part of the Nuremberg judgment, and such

principles are a source of law.34 At Nuremberg, the U.S. Military Tribunal suggested that any treaty between Germany and the French Vichy government that approved the use of French

prisoners of war in the German armaments industry would have been void under international law as contraire aux bonnes moeurs.35

Apart from considering wartime atrocities, commentators pointed to the emergence of new states as making the international community increasingly heterogeneous, necessitating some consensus on basic values. It was also and especially essential to coordinate competing ideol-

ogies in the new nuclear era. In this context, the international legal order required boundary principles that would limit state sovereignty. The fact of limits in law, a superstructure or international public order, a matter previously implicit among states with a common history and

traditions, needed to be made explicit. This claim of superior norms that override treaty and

custom, or provide an excuse to breach an obligation,36 continues to be discussed and debated.

II. JUS COGENS

In Theory

The theory ofjus cogens or peremptory norms37 posits the existence of rules of international law that admit of no derogation and that can be amended only by a new general norm of international law of the same value. It is a concept that lacks both an agreed content and consensus in state practice. In most instances it is also an unnecessary concept because, as discussed further

below, the derogating act violates treaty or custom and thus contravenes international law without the need to label the norm peremptory.

Development of jus cogens. The notion ofjus cogens originated solely as a limitation on international freedom of contract. It was discussed at length for the first time by Verdross

32 James Wilford Garner, The Nazi Proscription of German Professors ofInternational Law, 33 AJIL 112 (1939). 33 Alfred von Verdross, Forbidden Treaties in International Law, 31 AJIL 571 (1937). 34 Quincy Wright, Legal Positivism and the NurembergJudgment, 42 AJIL 405 (1948); see also Quincy Wright,

The Law ofthe Nuremberg Trial, 41 AJIL 38, 54 (1947) (aggressive war is prohibited by a rule of international law, resting upon "general principles of justice").

35 United States v. Krupp, 9 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, at 1395 (1950). The statement was dicta because no such agreement was ever found, but the case represents the first majority opinion to suggest limitations on freedom to contract treaties.

36 See Helen Silving, In re Eichmann: A Dilemma of Law and Morality, 55 AJIL 307 (1961). 37 The terms jus cogens and peremptory norms are used interchangeably. Article 53 of the VCLT, supra note 4,

is entitled "Treaties conflicting with a peremptory norm of general international law (jus cogens)."

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in 1937.38 Even prior to this, however, Quincy Wright had noted the problem of "illegal" treaties, based on a 1916 judgment39 of the Central American Court of Justice denying the

capacity of Nicaragua to conclude the 1914 Bryan-Chamorro Treaty with the United States.40 The Court held that Article 2 of the Treaty, which gave the United States a ninety- nine-year lease on a naval station on Nicaraguan territory in the Gulf of Fonseca, could not be applied because it derogated from the customary international law rights of Sal- vador and Honduras to condominium in the gulf. The Court also agreed with Costa Rica that Article 1 of the Treaty conflicted with an 1858 treaty between Costa Rica and Nic-

aragua that protected boundary waters. The decision in favor of Costa Rica upheld the earlier treaty. In his commentary Wright appears to agree with de Visscher that custom and treaties may create "objective" rules of international law that are of universal and permanent applicability, but he notes that the treaty was affecting the rights of nonsignatories and finds this fact a proper ground for the Court's decision. Judge Schiicking's well-known dissent in the PCIJ's Chinn case, in which he argued that the Court should refuse to enforce an agreement contrary to international public policy, was also influential and specifically cited by Verdross.41

Verdross's article was written in response to a report on the law of treaties42 that had failed to discuss the problem of a treaty in conflict with general international law. According to

Verdross, freedom to conclude treaties could be limited only if general international law contained rules that have the character ofjus cogens. He took a practical approach to the question: finding nothing in theory to preclude the possibility of such rules, he looked to see whether international law had established such rules in practice. He concluded that compulsory norms of customary international law, such as freedom of the high seas, would work to invalidate

any agreement in which two or more states sought to exclude other states from the use of the high seas.43 It is not clear, however, why a doctrine ofjus cogens is necessary to refuse enforcement of treaties of this type. The law of treaties has long held that states cannot by treaty affect the rights of third states without their consent, a rule now codified in VCLT Articles 34-35.

Verdross's other category ofjus cogens consisted of general principles of morality or public policy "common to the juridical orders of all civilized states,"44 a concept more in keeping with later writings on the topic. He grounded recourse to these ethical standards in the reference to

general principles of law recognized by civilized nations in the Statute of the PCIJ. He acknowl-

edged the difficulty of finding common ethical rules among members of the international com-

munity, but found an "unequivocal" common principle in the decisions of national courts that

everywhere regard treaties as invalid if they "restrict the liberty of one contracting party in an

38 Verdross, supra note 33. Verdross returned to this subject three decades later as the Vienna Convention on the Law of Treaties was being negotiated. Alfred Verdross, Jus Dispositivum andJus Cogens in International Law, 60 AJIL 55 (1966) [hereinafter Verdross, Jus Dispositivum].

39 Costa Rica v. Nicaragua (Central Am. Ct. Justice Sept. 30, 1916), translated and reprinted in 11 AJIL 181 (1917). 40

Quincy Wright, Conflicts Between International Law and Treaties, 11 AJIL 566 (1917). 41 Oscar Chinn, 1934 PCIJ (ser. A/B) No. 63, at 149-50 (Schiicking, J. dissenting). For a discussion, see H.

Arthur Steiner, Fundamental Conceptions of nternational Law in the Jurisprudence of the Permanent Court of nternational Justice, 30 AJIL 414, 417-19 (1936).

42 The Law of Treaties, Harvard Research in International Law, 29 AJIL Supp. 655 (1935). 43 Quincy Wright would probably have responded that it is unnecessary to have recourse to jus cogens when a

treaty purports to deny third parties their rights under customary international law because those affected would not have given their consent to the "new rule" and thus the agreement would not be enforced against them.

44 Verdross, supra note 33, at 572.

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excessive or unworthy manner or ... endanger its most important rights."45 To ascertain which international treaties are immoral, Verdross sought to determine the moral tasks states must accomplish, to seek the ethical minimum. He listed maintenance of law and order within the state, defense against external attack, care for the bodily and spiritual welfare of citizens at

home, and protection of citizens abroad. Any treaty that would prevent a state from fulfilling one of these essential tasks would be regarded as immoral.46

In the considerable literature that has materialized since the appearance ofVerdross's article, the concept of jus cogens has received widespread support, without any agreement or clarity about its source, content, or impact.47

Sources ofperemptory norms. Verdross viewed the source of peremptory norms as residing in

general principles of law recognized by all legal systems. Others believe peremptory norms arise from consent, natural law (jus necessariumpro omnium), international public order, or constitutional principles.48 A strictly voluntarist view of international law rejects the notion that a state may be bound by an international legal rule without its consent and thus does not rec-

ognize a collective interest that is capable of overriding the will of an individual member of the

society. States are deemed to construct the corpus of international law either through agreements or through repeated practice out of a sense of legal obligation.49 Indeed, international law has traditionally been defined as a system of equal and sovereign states whose actions are limited only by rules freely accepted as legally binding. The PCIJ, in one of its early decisions, stated that "[t]he rules of law binding upon States . . . emanate from their own free will as

expressed in conventions or by usages generally accepted as expressing principles of law."50 As

recently as 1986, the ICJ reaffirmed this approach with respect to the acquisition of weaponry by states. In the Nicaragua Judgment the Court stated: "[I]n international law there are no

rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise,

whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all States without exception."51

The only references to peremptory norms in international texts are found in the Vienna conventions on the law of treaties and they can be read largely to support a voluntarist basis forjus cogens. An early rapporteur on the law of treaties of the International Law Commission proposed that the ILC draft convention on the law of treaties include a provision voiding treaties

contrary to fundamental principles of international law.52 This proposal clearly took a non- consensual approach, as it constituted a challenge to the view that states have the right inter

45 Id. at 574. Verdross may well have had in mind the Austrian capitulation to Nazi Germany. 46

Writing during the Great Depression, Verdross made reference specifically to the immorality of an obligation to pay foreign debts to the point that essential public services were affected within a state. Id. at 575.

47 See JERZY SZTUCKI, JUS COGENS AND THE VIENNA CONVENTION ON THE LAW OF TREATIES (1974). 48 For an excellent discussion of these theories, see Robert Kolb, Theorie du Ius Cogens International, 2003 REV.

BELGE DE DROIT INTERNATIONAL 5, 14-28. For a "constitutional" approach to jus cogens, see Stefan Kirchner, Relative Normativity and the Constitutional Dimension of nternational Law: A Placefor Values in the International

Legal System? 5 GERMAN. L.J. 47 (2004). 49 Louis Henkin, InternationalLaw: Politics, Values and Functions, 216 RECUEIL DES COURS 9, 45 (1989 IV);

Weil, supra note 2; Danilenko, supra note 8, at 42; I. I. Lukashuk, The Principle Pacta Sunt Servanda and the Nature

of Obligation Under International Law, 83 AJIL 513 (1989). 50 S.S. Lotus (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10, at 18 (Sept. 7). 51

Military and ParamilitaryActivities in andAgainst Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14, 135, para. 269 (June 27).

52 Sir Humphrey Waldock proposed the concept and three categories ofjus cogens: (1) illegal use of force, (2) international crimes, and (3) acts or omissions whose suppression is required by international law. The categories were dropped by the ILC, because each garnered opposition from at least two-thirds of the Commission. See SZTUCKI, supra note 47; Richard D. Kearney & Robert E. Dalton, The Treatyon Treaties, 64AJIL495, 535 (1970).

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se to opt out of any norm of general international law. At the same time, it did not identify the basis.for creating or determining "fundamental principles of international law." The proposal represented "progressive development" of international law rather than codification of existing state practice.53

The provisions eventually adopted at the Vienna Conference on the Law of Treaties limited the ability of states to escape fundamental norms, but they also established state consent as the foundation for such rules. Article 53 of the 1969 VCLT, concerning treaties between states,

provides that a treaty will be void "if, at the time of its conclusion, it conflicts with a peremptory norm of general international law."54 Such a norm is defined by the VCLT as one "accepted and recognized by the international community of states as a whole as a norm from which no

derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."55 Article 64 adds that the emergence of a new peremptory norm of general international law will void any existing treaty in conflict with the norm.56 Thus, Article 53 demands that there first be established a norm of general international law and, second, that the international community ofstates as a whole agree that it is a norm from which no derogation is permitted. While this definition precludes an individual state from

vetoing the emergence of a peremptory norm, it sets a high threshold for identifying such a norm and bases the identification squarely in state consent.

Even so limited, the concept was controversial from the start57 and divided the Vienna Con- ference on the Law of Treaties. Strong support came from the Soviet bloc and from newly inde-

pendent states, which saw it as a means of escaping colonial-era agreements. Western countries were less positive and several expressed opposition to the notion of peremptory norms, voting against the provision58 and withholding ratification of the treaty because of persisting objections to the concept.59 To date, the VCLT has garnered 108 ratifications, a little over half the countries of the world.

The drafting of the second treaty on treaties, the 1986 Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organiza- tions, indicated continued controversy among states over the concept ofjus cogens. The text

proposed by the ILC included provisions onjus cogens modeled after those of the 1969 VCLT. The commentary called the prohibition of the illegal use of armed force embodied in the UN Charter "the most reliable known example of a peremptory norm" and also claimed that the notion of peremptory norms, as embodied in VCLT Article 53, "had been recognized in public international law before the Convention existed, but that instrument gave it both a precision and a substance which made the notion one of its essential provisions."60 The representative

53 Gomez Robledo, supra note 8, at 17, called it "une innovation profonde et un grand pas franchi." 54VCLT, supra note 4, Art. 53. 55 Id. 56Id., Art. 64. 57 Contrast the views of Verdross, supra note 38, and Egon Schwelb, SomeAspects oflnternationalJus Cogens as

Formulated by the InternationalLaw Commission, 61 AJIL 946 (1967), with those of Georg Schwarzenberger, Inter- nationalJus Cogens? 43 TEX. L. REV. 455, 467 (1964-1965) ("The evidence of international law on the level of unorganized international society fails to bear out any claim for the existence of international jus cogens.")

58 Of the 110 states that participated in the plenary second session of the Vienna Conference, 87 voted in favor ofArticle 53 (then numbered Article 50) and 8 against (includingAustralia, Belgium, France, Switzerland, and Tur- key). There were 12 abstentions (including Japan and the United Kingdom). UNITED NATIONS CONFERENCE ON THE LAW OF TREATIES, OFFICIAL RECORDS, SECOND SESSION 107, UN Doc. A/CONF.39/11/Add.1 (1969), UN Sales No. E.70.V.6 (1970).

59 The VCLT was adopted by a vote of 79-1-19. 1969 UN Y.B. 734. 60 2 UNITED NATIONS CONFERENCE ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL

ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS, OFFICIAL RECORDS 39, 44, UN Doc.

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of France challenged that claim during the plenary drafting session, expressing his government's opposition to Article 53 "because it did not agree with the recognition that article gave tojus cogens," while another government calledjus cogens "still a highly controversial concept which raised the fundamental question of how to recognize the scope and content of a peremptory norm of general international law," noting that time had revealed "a divergence of views since 1969 regarding the nature of norms of jus cogens, which it had not been possible to define."6' The text of the Convention was adopted by 67 to 1, with 23 abstentions; it has yet to enter into force. Several states explained their abstention by referring to the articles concern-

ingjus cogens, including the dispute settlement provisions on the topic.62 Even some of those that favored jus cogens expressed uncertainty. The representative of Brazil called jus cogens "a

concept in evolution."63 Various scholars have convincingly argued that the language ofVCLT Article 53 establishes

a purely consensual regime for the creation of peremptory norms and that as a progressive development in international law the provision binds only states parties to the Vienna Con- vention.64 Some authors have gone further to argue that as a result of the progressive nature of the provision and its consensual formulation, neither nonparties to the VCLT nor new states are bound by peremptory norms to which they object,65 which seems incompatible with the

objective of creating norms from which no derogation is possible. Eric Suy has proposed perhaps the most plausible and creative solution to this issue, reconciling the consensual approach of the VCLT and the less positivistic approach discussed in the next few paragraphs. Suy dis-

tinguishes public order norms fromjus cogens norms. In his view, no society, international or

otherwise, can live without at least a minimum of fundamental principles that exert a higher value in the legal system, butjus cogens has a place only in the law of treaties. What exists outside

treaty law is the international public order, consisting of principles and rules whose enforcement is of such vital importance to the international community as a whole that any unilateral

action, or any agreement that contravenes such a principle, can have no legal force. Any breach of such a public order norm would fall in the realm of state responsibility.66

A/CONF. 129/16/Add. 1 (Vol. II) (1986). According to the commentary, "It is apparent from the draft articles that

peremptory norms of international law apply to international organizations as well as to States, and this is not sur-

prising." Id. at 39. 61 1 id. at 17, UN Doc. A/CONF. 129/16 (Vol. I). See also the concerns expressed by Germany, and similar objec-

tions raised to Article 64, which concerns the emergence ofa new peremptory norm ofgeneral international law. Id. at 17. 62 Id. at 186-94. 63 Id. at 188. 64 Wladyslaw Czaplinski, Concepts of Jus Cogens and Obligations Erga Omnes in InternationalLaw, 1997-1998

POLISH Y.B. INT'L L. 87, notes the objections made during the travauxprtparatoires of the VCLT and the claims of several states that the proposal on jus cogens constituted a progressive development (Argentina, Mali, and Sierra Leone). He concludes: "It seems manifest that jus cogens did not constitute part of customary law before the con-

cluding of the Vienna Convention and it binds exclusively parties to the Convention." Id. at 88. He adds: "Generally speaking, states are not particularly wishing to invalidate their international obligations because of their hypothet- ical non-conformity withjus cogens." Id. at 89.

65 FARHAD MALEKIAN, THE SYSTEM OF INTERNATIONAL LAW: FORMATION, TREATIES, RESPONSIBILITY, sec. 2.2.1.2 (1987). "The International Law Commission, in its draft proposal on the law of treaties, concluded that the rules of internationaljus cogens are the consequences of international positive law." As a result of this purely consensual regime, new states are able to accept or reject the general norms of peremptory character. Id., sec. 2.2.1.4. In addition, becausejus cogens norms must represent the general will of the community of states as a whole, there cannot be regional peremptory norms. Mosler disagrees about the consequences ofjus cogens on new states, con-

sidering that they are bound. Hermann Mosler, Jus Cogens im Volkerrecht, 1968 SCHWEIZERISCHES JAHRBUCH FUR INTERNATIONALES RECHT 9, cited in HEINRICH BERHAND REIMANN, IUS COGENS IM V6LKERRECHT 46 (1971).

66 Eric Suy, Remarks, in CHANGE AND STABILITY IN INTERNATIONAL LAW-MAKING 97 (Antonio Cassese & Joseph H. H. Weiler eds., 1988).

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Many scholars have long objected that the source of international obligation cannot lie in

consent, but must be based on a prior, fundamental norm that imposes a duty to comply with

obligations freely accepted.67 Without a source of this norm outside consent, there is an unavoidable circularity of reasoning.68 Some scholars object that positivism does not ade-

quately describe the reality of the current international order. According to Christian Tomuschat, "[T]he cohesive legal bonds tying States to one another have considerably strengthened since the coming into force ofthe United Nations Charter. ... [T] oday a community model of international society would seem to come closer to reality than [at] any time before in history."69 The community consists of states that live within a legal framework of a few basic rules that nonetheless allow them considerable freedom of action. Out of the community come common values and fundamental principles that bind the entire society.

It is certainly rational to accept that such a framework has become necessary in the light of

global problems threatening human survival in an unprecedented fashion.70 The emergence of global resource crises, such as the widespread depletion of commercial fish stocks, the destruction of the stratospheric ozone layer, and anthropogenic climate change, has produced growing concern about the "free rider," the holdout state that benefits from legal regulation accepted by others while enhancing its own profits through continued utilization of the resource or ongoing production and sale of banned substances.71 Recalcitrant states not only profit by rejecting regulatory regimes adopted by the overwhelming majority of states, they threaten the effectiveness of such regimes and pose risks to all humanity. The traditional consent-based international legal regime lacks a legislature to override the will of dissenting states, but efforts to affect their behavior are being made, first, through the doctrine of peremptory norms or universal law72 applicable to all states, and, second, through expanding the concept of international law to include soft law. The same approach may be taken toward states seeking to denounce, or acting to violate, multilateral agreements that reflect widely and deeply held

values, such as those guaranteeing human rights or expressing humanitarian law. In sum, the source of peremptory norms has been variously attributed to state consent, nat-

ural law, necessity, international public order, and the development of constitutional principles. The different theories lead to considerably different content forjus cogens norms and con-

sequences for their breach. The content of jus cogens. Neither the International Law Commission nor the Vienna Con-

ference on the Law of Treaties developed an accepted list of peremptory norms, although both made reference in commentaries and discussion to the norms against genocide, slave trading, and use of force other than in self-defense. Some developing countries referred to permanent

67 HANS KELSEN, THE PURE THEORY OF LAW 214-17 (Max Knight trans., 2d rev. ed. 1967) (1937). Oscar Schachter identified thirteen theories about the origin of obligation in international law. Oscar Schachter, Towards a Theory of International Obligation, 8 VA. J. INT'L L. 300 (1968).

68 A natural-law origin of international obligation was the dominant theory among scholars until the nineteenth century, when positivism and an emphasis on the sovereignty of states emerged in theory and practice.

69 Tomuschat, supra note 8, at 210-11. 70 Georges Abi-Saab groundsjus cogens in necessity. He asks whether a voluntarist legal system can govern modern

international relations and responds: "I think this is an impossibility. ... In any case, it no longer reflects or faithfully describes the actual system of international law." Jus cogens is necessary, because the international legal system must have a structure, and cannot avoid establishing a certain hierarchy of its norms. Georges Abi-Saab, Remarks, in CHANGE AND STABILITY IN INTERNATIONAL LAW-MAKING, supra note 66, at 96.

71 Charney, supra note 7, at 530. 72 The term "universal law" is used by Charney, supra note 7, to refer to rules that bind all states, even those that

object to the rule.

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sovereignty over natural resources as a peremptory norm.73 The different theories as to the source of peremptory norms affect the contents; those who adhere to the voluntarist approach generally see the content as limited to a few rules that states have recognized as not being subject to derogation, reservation, or denunciation. Natural law proponents would subscribe to an even stricter list of immutable principles of justice. In contrast, theories based on community values result in a longer list of evolving norms. Eduardo Jimenez de Arechaga posits that " [t]he substantive contents ofjus cogens are likely to be constantly changing in accordance with the

progress and development of international law and international morality."74 Since the adoption of the Vienna Convention, the literature has abounded in claims that

additional international norms constitutejus cogens. Proponents have argued for the inclusion of all human rights, all humanitarian norms (human rights and the laws of war),75 or singly, the duty not to cause transboundary environmental harm, freedom from torture,76 the duty to assassinate dictators,77 the right to life of animals, self-determination, the right to development,78 free trade,79 and territorial sovereignty (despite legions of treaties transferring territory from one state to another).80 During the Cold War, Soviet writers asserted the invalidity of treaties that conflicted with the "basic principles and concepts" of international law, defined to include universal peace and security of nations; respect for sovereignty and territorial integrity; noninterference in internal affairs; equality and mutual benefit between nations; andpacta sunt servanda. Examples of invalid agreements included the NATO pact, the peace treaty between the United States and Japan, the SEATO agreement, and the U.S.-UK agreement on

establishing air bases.81 In most instances, little evidence has been presented to demonstrate how and why the preferred norm has become jus cogens. Wladystaw Czapliniski correctly

73 The judgment of March 24, 1982, of the arbitral tribunal in theAminoilv. Kuwaitcase rejected the claim that permanent sovereignty over natural resources constitutes a principle ofjus cogens. Kuwait and Am. Independent Oil Co., 21 ILM 976 (1982) (Reuter, Sultan, & Fitzmaurice arbs., 1982).

74 E. Jimenez de Arechaga, General Course in Public International Law, 159 RECUEIL DES COURS 9, 67 (1978 I). 75 In his later article on the topic, Verdross argued that "all rules of general international law created for a human-

itarian purpose" constitutejus cogens. Verdross, Jus Dispositivum, supra note 38, at 59. 76 Erika de Wet, The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for

National and International Customary Law, 15 EUR. J. INT'L L. 97 (2004). 77 Louis Rene Beres, Prosecuting Iraqi Crimes Against Israel During the Gulf War: Jerusalem s Rights Under Inter-

national Law, 9 ARIZ. J. INT'L & COMP. L. 337 (1992) (jus cogens obligation to assassinate in specified circumstances).

78 Shashank Upadhye, The International Watercourse: An Exploitable Resourcefor the Developing Nation Under International Law? 8 CARDOZO J. INT'L & COMP. L. 61 (2000) (right to development as a jus cogens norm).

79 In contrast to the views of those who call humanitarian normsjus cogens, Michael H. Allen asserts that globalist social forces ideologically committed to neoliberalism have succeeded in making free trade a peremptory norm in international law second only to nonaggression, and have preempted the emergence of countervailing peremptory norms on human rights and environmental imperatives. Michael H. Allen, Globalization andPeremptory Norms in International Law: From Westphalian to Global Constitutionalism? 41 INT'L POL. 341 (2004):

The practical effect has been that no treaty on other matters, such as environmental concerns or the protection of cultural assets, are [sic] regarded as valid if they contradict the requirement of open markets. Free trade has achieved peremptory status by reason of the social power, market prominence, and ideological pro- ductivity of the social forces who support the EU, Nafta and WTO.

Id. at 346. 80 See, e.g., Patricia Y. Reyhan, Genocidal Violence in Burundi: Should International Law Prohibit Domestic

Humanitarian Intervention? 60 ALBANY L. REV. 771 (1997) (genocide). 81 Jan F. Triska & Robert M. Slusser, Treaties and Other Sources of Order in International Relations: The Soviet

View, 52 AJIL 699, 710, 717-18 (1958). Grigorii Tunkin proclaimed in 1974 that the Brezhnev doctrine, which he called proletarian internationalism, was ajus cogens norm. G. I. TUNKIN, THEORY OF INTERNATIONAL LAW 444 (William E. Butler trans., 1974).

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comments that "the trend to abuse the notion ofjus cogens is always present among international lawyers."82

The legalconsequences ofjus cogens. In Manhattan, along one of the major crosstown streets, the curb in front of a bus stop is painted red, which is known throughout the United States to denote a no-parking zone. On a street lamp next to the bus stop is a sign reading "No Parking." Above that, a second sign reads "Absolutely no parking." On top, a third sign dictates "Don't even think of parking here." If signs one and two can be taken to stand for treaty and custom, the question must be asked: what does the third sign add in practice other than visual shoe pounding? Does it make the law against parking in the bus zone more binding? Clearly not. Does it indicate that the sanctions are more severe? Possibly, but nothing on the signs reveals this to be the case. Does it mean that the police will pass more frequently to enforce the parking ban? This is also a possible consequence, although not one that is clear from the sign itself. The questions provoked by the signs may also be asked about the

category of jus cogens. According to VCLT Article 53, a peremptory norm operates to void any treaty entered into

contrary to the norm. Yet it is hard to accept the practical import of the VCLT: if one assumes that two states enter into an agreement, for example to commit genocide, slave trading, or

aggression, Article 71 would dictate that the parties should then eliminate the consequences of any illegal act performed in reliance on the treaty and bring their relations into conformity with the peremptory norm. Since the treaties and acts mentioned would also be likely to constitute breaches of UN Charter Article 103, it would seem unnecessary to resort tojus cogens. Erika de Wet, using torture as an example and citing the Furundzija case,83 posits several other

specific consequences for states breaching a peremptory norm: delegitimizing any legislative, administrative, or judicial act authorizing the prohibited act; overriding domestic amnesty; allowing victims to file in international tribunals to hold national measures internationally unlawful; obtaining civil damages from courts in any jurisdiction; allowing universal jurisdiction for criminal investigation, prosecution, and punishment; and excluding application of

political offense exceptions or statutes of limitations.84 Yet most of these consequences could

seemingly result from the enforcement of treaty and customary norms without the necessity ofjus cogens designation. National laws and policies do not excuse the breach of an international

obligation and the procedures for enforcement may be developed independently ofajus cogens designation. In fact, perhaps the only real impact ofjus cogens would be on a state, if any, that did not adhere to a single one of the many treaties banning torture and persistently claimed the

right to commit torture, as the norm banning the practice emerged into customary international law.

Indeed, although the idea ofjus cogens originated solely as a limitation on the treaty-making power of states, today an assertion that a norm isjus cogens seems more often intended to override the will of persistent objectors to the emergence of the norm as customary international law.85 Ifjus cogens is "a norm from which no derogation is possible" and its creation by "the

82 Czaplinfski, supra note 64, at 88. 83 Prosecutor v. Furundzija, No. IT-95-17/1-T10 (Dec. 10, 1998), available at <http://www.un.org/icty>. 84 De Wet, supra note 76. 85 Theoretically, of course, the concept would also be applicable if two or more states decided to enter into an

agreement to commit genocide or territorial acquisition by aggression and one of them later changed its mind. According to the VCLT, only a party to an illegal agreement can invoke the illegality to escape its treaty obligations. The ILC articles on state responsibility go further and impose obligations on all states to repress breaches ofjus cogens norms; third states may have standing to complain as well if the jus cogens norm being breached also involves an obligation erga omnes.

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international community as a whole" means anything less than unanimity, then the issue of

dissenting states arises. In reality, the problem is likely to arise rarely because those norms most often identified as

jus cogens are clearly accepted as customary international law and there are no persistent objectors. In addition, the obligations deemed basic to the international community-to refrain from the use of force against another state, to settle disputes peacefully, and to respect human

rights, fundamental freedoms, and self-determination-are conventional obligations contained in the UN Charter, to which all member states have consented. Nearly all states have also accepted the humanitarian conventions on the laws ofwar, expressions of customary international law to which there are no persistent objectors. The multilateral regimes for the oceans, outer space, and key components of the environment (climate change, protection of the ozone

layer, and biological diversity) are widely accepted. Thus, in most cases the problem is one of

ensuring compliance by states that have freely consented to the obligations in question and not one of imposing obligations on dissenting states. Under these circumstances, the value added

by labeling norms as peremptory is certainly open to question. According to those who find the source ofjus cogens in state consent, the consequence is lim-

ited to the law of treaties, pursuant to the provisions of the VCLT. Those provisions preclude states from concluding valid treaties contrary to peremptory norms because such treaties would be illegal and void ab initio. There are no other consequences under the most stringent consensual approach, although some writers admit that if treaties violating peremptory norms are

illegal, there may then be consequences in the law of state responsibility. Those who accept a less consensual source for peremptory norms, whether based in natural

law or implicit acceptance of "necessary" legal rules, agree that the consequences are much broader. Jus cogens in this perspective overrides contrary international and domestic law, whether the state in question accepts or dissents from the asserted peremptory norm.

In Practice

The concept ofjus cogens has been invoked largely outside its original context in the law of treaties and with only limited impact. At the International Court of Justice, until early 2006, the term appeared only in separate or dissenting opinions or when the Court was quoting other sources.86 Previously, states rarely raised the issue,87 and when they did the Court seemed to take pains to avoid any pronouncement on it.88

The 1986 Nicaragua decision, most often cited for the Court's recognition ofjus cogens, did not in fact approve either the concept or the content of such norms.89 In the subsequent advi-

sory opinion on nuclear weapons, the ICJ utilized descriptive phrases that could be taken to refer to peremptory norms, although the language is unclear. The Court called some rules of

86 See, e.g., Right of Passage over Indian Territory (Port. v. India), Merits, 1960 ICJ REP. 6, at 135, 139-140 (Apr. 12) (Renandes, J. adhoc, dissenting); South West Africa, Second Phase (Eth. v. S. Afr.; Liber. v. S. Afr.), 1966 ICJ REP. 6, 298 (July 18) (Tanaka, J., dissenting).

87 Gabcikovo-Nagymaros Project (Hung./Slovk.), 1997 ICJ REP. 7, para. 112 (Sept. 25) (noting that neither side

had contended that new peremptory norms of environmental law had emerged). 88 See North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ REP. 3, para. 72 (Feb. 20) (declining to

enter into or pronounce upon any issue concerningjus cogens). 89

Military and Paramilitary Activities in andAgainst Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14, 100, para. 190 (June 27) (citing the ILC assertion that the norm against aggression is a peremptory norm as evidence that it is an obligation under customary international law).

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international humanitarian law so fundamental to respect for the human person and "elemen-

tary considerations of humanity" that "they constitute intransgressible principles of international customary law."90 Whether "intransgressible" means the rules are peremptory or was used simply to emphasize the binding nature of the customary norms is uncertain, but the former reading may be more plausible.

The first occasion on which the International Court gave support to the existence ofjus

cogens was in the February 3, 2006, Judgment on Preliminary Objections in ArmedActivities on the Territory ofthe Congo.91 The Democratic Republic of the Congo (DRC or the Congo) alleged violations of human rights and humanitarian law resulting from acts of armed aggression committed by Rwanda in the DRC. Three bases of jurisdiction asserted by the Congo92 involved claimed breaches of peremptory norms. First, the DRC alleged breaches of the Geno- cide Convention and contended that Rwanda's reservation withholding jurisdiction from the

ICJ was invalid because it sought to prevent the Court from safeguarding the peremptory norms manifest in the Convention. Second, the DRC accused Rwanda of filing an invalid reservation to the Racial Discrimination Convention, which according to the DRC also contains

peremptory norms. Third, the DRC invoked Article 66 of the Vienna Convention on the Law of Treaties, to assert that the Court has jurisdiction to settle all disputes arising from the violation of peremptory norms.

The Court for the first time explicitly and overwhelmingly recognized the existence ofjus cogens in its analysis of the validity of Rwanda's reservations to the Genocide and Racial Dis- crimination Conventions. With respect to the Genocide Convention, the Court reaffirmed that the rights and obligations contained therein are rights and obligations erga omnes,93 then

pronounced the prohibition of genocide to be "assuredly" a peremptory norm of general international law. In making this straightforward statement, the Court did not offer any reference, evidence, or analysis that might help to establish criteria for identifying other peremptory norms or the consequences of such a characterization.

As in most other cases where peremptory norms have been recognized, the legal conse-

quences of this classification were essentially imperceptible. The Court held by 15-294 that it lacked jurisdiction over the dispute, reaffirming that "[u]nder the Court's Statute that jurisdiction is always based on the consent of the parties."95 Concerning the Rwandan reservations,

90 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ REP. 226, para. 79 (July 8).

91 Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Jurisdiction and Admissibility (Int'l Ct. Justice Feb. 3, 2006) [hereinafter Congo v. Rwanda Judgment].

92 The DRC asserted a breach of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, openedfor signature Dec. 10, 1984, 1465 UNTS 85, to which Rwanda is not a party; invoked but failed to maintain a claim based on the Convention on the Privileges and Immunities of the Specialized Agencies, Nov. 21, 1947, 33 UNTS 261; asserted that Rwanda's appearance to contest jurisdiction and a request for provisional measures amounted to an acceptance of jurisdiction; and asserted jurisdiction of the ICJ based on Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948,78 UNTS 277 [hereinafter Genocide Convention]; Article 22 of the Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 UNTS 195 [hereinafter Racial Discrimination Convention]; Article 29(1) of the Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 UNTS 13; Article 75 of the WHO Constitution, July 22, 1946,62 Stat. 2679, 14 UNTS 185; Article XIV(2) of the Con- stitution of the United Nations Educational, Scientific and Cultural Organization, Nov. 16, 1945, TIAS No. 1580, 4 UNTS 275; Article 14(1) of the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Sabotage), Sept. 23, 1971, 24 UST 564, 974 UNTS 177; and VCLT, supra note 4, Art. 66.

93 Congo v. Rwanda Judgment, para. 64 (citing Application of the Convention on the Prevention and Punishment

of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Preliminary Objections, 1996 ICJ REP. 595, 616 (July 11)). 94 Neither of the dissenting judges contested the existence ofjus cogens; they would have found jurisdiction on

other bases. 95

Congo v. Rwanda Judgment, para. 64.

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the Court held that a reservation to ICJ jurisdiction cannot be judged invalid on the ground that it withholds jurisdiction overjus cogens violations. Thus, " [w]hen a compromissory clause in a treaty provides for the Court's jurisdiction, that jurisdiction exists only in respect of the

parties to the treaty who are bound by that clause and within the limits set out therein."96 As for the Genocide Convention, the Court characterized Rwanda's reservation to Article IX pre- cluding the Court's jurisdiction as one "meant to exclude a particular method of settling a dis-

pute relating to the interpretation, application or fulfilment of the Convention" and not one

affecting substantive obligations relating to acts of genocide themselves.97 It was therefore

valid, there being no peremptory norm of international law requiring a state to consent to ICJ

jurisdiction in a case involving genocide. The Court took the same approach to the DRC's argument against the validity of Rwanda's

reservation to the dispute settlement provision of the Racial Discrimination Convention, but the Judgment leaves unclear whether or not the Court accepted the DRC's claim that the prohibition of racial discrimination is ajus cogens norm. The Court simply referred back to its rea-

soning on the Genocide Convention and reaffirmed the nonexistence of a peremptory norm

requiring states to consent to ICJ jurisdiction, leaving open its characterization of the substantive norms in the treaty.

Finally, the Court assessed whether or not Article 66 of the Vienna Convention provides a basis for ruling on alleged jus cogens violations.98 The Court found no basis for jurisdiction, accepting Rwanda's argument that the Vienna Convention is not retroactive. Therefore, it would not apply to the treaties in question, unless Article 66 could be found to codify custom-

ary international law, which the Court held it does not do. In sum, according to the ICJ, neither the erga omnes nor the peremptory character of a norm of itself gives the Court jurisdiction to decide a dispute, which always depends on the consent of the parties. No peremptory norm

requires a state to consent to jurisdiction where compliance with a peremptory norm is the issue before the Court.

Like Congo v. Rwanda, the ICJ's Arrest WarrantJudgment of February 14, 2002, indicates the limited role ofjus cogens in practice. Belgium issued an international arrest warrant charging the Congolese foreign minister with grave breaches of the Geneva Conventions of 1949 and with crimes against humanity. The Congo claimed that in doing so Belgium had violated "the rule of customary international law concerning the absolute inviolability and immunity from

96 Id., para. 65 (citing Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Provisional Measures, 2002 ICJ REP. 245 (July 10)). Even if the reservation had been held invalid, it is not clear that the result would have been in favor of jurisdiction. The consequences of an invalid reservation set forth in the Vienna Convention on the Law of Treaties do not include ignoring the reservation and

treating the party as if the reservation had not been made. See VCLT, supra note 4, Arts. 20, 21. 97

Congo v. Rwanda Judgment, para. 67. The Court also noted its previous advisory opinion finding that the Genocide Convention permits reservations, pointed out that it had given effect to Article IX reservations in prior cases, and noted that the DRC had failed to object to Rwanda's reservation when it was made. Id., paras. 66, 68

(citing Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 ICJ REP. 15 (May 28)). Five judges in a separate opinion indicated some concerns about the Court's treatment of Rwanda's reservation to Article IX of the Genocide Convention. Seeking to restrict the Judgment to the facts of this case, they noted that the ICJ gives an important role to the Court with respect to the fulfillment of the Convention. "It is thus not self-evident that a reservation to Article IX could not be regarded as incompatible with the object and purpose of the Convention and ... this is a matter that the Court should revisit for further consideration." Id., Separate Opinion of Judges Higgins, Kooijmans, Elaraby, Owada, and Simma, para. 29.

98 Article 66(a) provides that "any one of the parties to a dispute concerning the application or the interpretation ofArticle 53 or 64 [the provisions concerningjus cogens] may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration."

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criminal process of incumbent foreign ministers."99 On the basis of the pleadings, the Court

proceeded from the assumption that Belgium had jurisdiction under international law to issue and circulate the arrest warrant. The Congo contended that immunity from criminal process is absolute or complete and thus subject to no exception, even for international crimes. Bel-

gium specifically argued that immunities cannot apply to war crimes or crimes against human-

ity, citing treaties, international and national tribunals, and national legislation. In particular, it contended that an exception to the immunity rule was accepted in the case of serious crimes under international law. The Court held that "certain holders of high-ranking office" enjoy immunity from civil and criminal process, and concluded that no customary international law restricts their immunity even when they are suspected of having committed war crimes or crimes against humanity. The ICJ came to this conclusion without discussing the possiblejus cogens status of the norms or the effect ofjus cogens norms on sovereign immunity.?00

John Dugard, writing separately as an ad hoc judge in Congo v. Rwanda, alone discussed the

concept ofjus cogens in some detail and reviewed the Court's prior jurisprudence, including the Arrest WarrantJudgment. He addressed in particular the limited consequences deriving from normative hierarchy in international law. In his view, the concept ofjus cogens "is not to be used as an instrument to overthrow accepted doctrines of international law."'01 This precept poses, as he noted, many problems about the proper application of peremptory norms. Taking together existing jurisprudence, treaties, and customary international law, he restated the view that a treaty will be void if it conflicts with a peremptory norm of general international law,102 and that states must deny recognition to a situation created by the serious breach of a peremptory norm.'03 He also noted that it has been suggested that a Security Council resolution will be void if it conflicts with a norm ofjus cogens. 04 Beyond these effects, he found thatjus cogens norms have a role to play in the judicial process where authorities are divided or different general principles compete for priority, guiding judges to choose certain superior principles and

policies "in order to arrive at a coherent conclusion that most effectively furthers the integrity of the international legal order."'05 Jus cogens norms, reflecting the most fundamental policies or goals of the international community, must inevitably play a dominant role in the process of judicial choice. Dugard implicitly criticized the ICJ's judgments in theArrest Warrant, South

WestAfrica, and East Timor cases, asserting that in all of them the Court might have invoked

jus cogens norms but did not. According to Dugard's assessment of these cases, the Court was faced with competing principles and precedents and preferred not to choose the solution that

gave effect to a norm ofjus cogens. It was not asked to overthrow an established principle. In

99 Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ REP. 3, para. 12 (Feb. 14). The Vienna Convention on Diplomatic Relations and Vienna Convention on Consular Relations were said to reflect customary international law. Id., para. 52.

100 Id., para. 51. Only one of the ten opinions in theArrest Warrantcase mentions the concept ofjus cogens norms

despite its obvious relevance to the issues in the case. The dissenting opinion of Judge Al-Khasawneh refers to jus cogens, linking immunity and impunity. Dissenting Opinion of Judge Al-Khasawneh, id. at 95, para. 7.

101 Congo v. Rwanda Judgment, supra note 91, Separate Opinion of Judge ad hoc Dugard, para. 6 [hereinafter Dugard Separate Opinion].

102 VCLT, supra note 4, Art. 53. 103 Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law

Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, 282, 287, Arts. 40, 41, UN Doc. A/56/10 (2001) [hereinafter State Responsibility Articles].

104 Dugard Separate Opinion, supra note 101, para. 8 (citing Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo. (Serb. & Mont.)), Further Requests for Pro- visional Measures, 1993 ICJ REP. 325, 440 (Sept. 13) (Lauterpacht, J. ad hoc, sep. op.)). See also the views of the European Court of First Instance in notes 121-34 infra and corresponding text.

105 Dugard Separate Opinion, supra note 101, para. 10.

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contrast, the DRC asked the Court to "invoke a peremptory norm to trump a norm of general international law accepted and recognized by the international community of States as a whole and which has guided the Court for over 80 years."'06 Dugard agreed with the Court that to do so would go too far.

The asserted distinction is not entirely convincing. All of the cited cases before the ICJ involved the making of exceptions to established norms of international law on issues of jurisdiction. The Court denied standing to the applicants in the South WestAfrica case by applying preexisting rules on standing. The East Timor case similarly denied Portugal's application to

protect the asserted superior norm of self-determination of peoples, on the basis that Portugal was not the real party in interest. In the Arrest Warrant case, the Court was asked to trump a

widely accepted norm of general international law that affords immunity to heads of state and

foreign ministers, because the alleged acts involved violations of peremptory norms. One distinction between these cases and the most recent judgment, which may be an important matter of policy, is that giving effect to the trumping value ofjus cogens in all the earlier cases would

simply have permitted the states involved to proceed in the direction they sought so as to

enforcejus cogens norms. In contrast, had the DRC prevailed in Congo v. Rwanda, the result would have forced Rwanda to litigate the merits of the case directly contrary to the will it had

uniformly expressed in its treaty reservations. In any event, the Court was unwilling in any of the cases to recognize specific consequences from the invocation of a peremptory norm. Other international and national courts have shown similar hesitancy.

Neitherjus cogens nor peremptory norms have been mentioned in decisions of the UN Tri- bunal for the Law of the Sea, nor have they been referred to by the Iran or Iraq claims tribunals. Human rights tribunals until quite recently also avoided pronouncing onjus cogens. In its only human rights judgment to discussjus cogens, decided in 2002, the European Court of Human

Rights denied that violation of the peremptory norm against torture could act to deprive a state of sovereign immunity. The Court agreed that the prohibition of torture is a peremptory norm, a fundamental value and an absolute right, but found that it was "unable to discern" any basis for overriding state immunity from civil suit where acts of torture are alleged.107

In the Inter-American Court of Human Rights, the term has been discussed only once by the Court as a whole, in its 2003 advisory opinion on the juridical condition and rights of undocumented migrants.108 Mexico requested the opinion largely to indicate its concern about domestic labor laws and practices as they affect aliens in the United States. Perhaps in an effort to anticipate possible arguments by the United States that it has not consented to relevant international norms, Mexico's fourth question to the Court asked: "What is the nature

today of the principle of non-discrimination and the right to equal and effective protection of the law in the hierarchy of norms established by general international law and, in this context, can they be considered to be the expression of norms of ius cogens?"l09 Mexico also asked the Court to indicate the legal effect of a finding that these norms are jus cogens.

Mexico's request generated considerable interest. Five other states, not including the United States, participated in the proceedings, as did the Inter-American Commission on Human

106 Id., para. 13 (citingArrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ REP. 3 (Feb. 14); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), Not- withstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ REP. 16 (June 21); East Timor (Port. v. Austl.), 1995 ICJ REP. 90 (June 30)).

107 Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, para. 61, 34 EUR. HUM. RTS. REP. 11 (2002). 108 Juridical Condition and Rights ofthe Undocumented Migrants, Advisory Opinion, Inter-Am. Ct. Hum. Rts.

(ser. A) No. 18 (2003). 109 Id., para. 4.

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Rights; in addition, a dozen individuals and groups filed briefs as amici curiae. However, apart from

Mexico, only the intervention of the Commission and two briefs from university amici curiae discussed the topic ofjus cogens. Costa Rica expressly disavowed any intention to comment on it.10

Mexico asserted that unnamed publicists have denominated fundamental human rights as norms ofjus cogens. It also referred to the views of individual judges and the International Law Commission on the legal effects ofjus cogens.l

1 The main argument of Mexico, however, was that "universal morality," as a source of law, provides a basis for establishing norms of jus cogens."2 Mexico claimed, in this respect, that a cautious approach in case law has lagged behind the views of the international community. Indeed, Mexico argued for the "transfer" of the Martens clause from humanitarian law to the field of human rights to imply the formulation of new norms and obligations, even those characterized as jus cogens.113

The Commission's position simply asserted that the international community is unanimous in considering the prohibition of racial discrimination as an obligation erga omnes; it then

jumped to the conclusion that the principle ofnondiscrimination is a norm ofjus cogens, at the same time noting that the international community has not yet reached consensus on prohib- iting discrimination based on motives other than racial discrimination. According to the Com- mission, "[T]his does not lessen its fundamental importance in all international laws.""l4

The Court's opinion, which, it stated, applies to all OAS member states whether or not they are party to the American Convention on Human Rights, 115 appears clearly to view natural law as a source of higher obligation. According to the Court, "All persons have attributes inherent to their human dignity that may not be harmed; these attributes make them possessors of fundamental rights that may not be disregarded and which are, consequently, superior to the

power of the State, whatever its political structure.""116 The Court nonetheless cited nineteen treaties and fourteen soft law instruments on the principle ofnondiscrimination, finding that, taken together, they evidence a universal obligation to respect and guarantee human rights without discrimination. On whether this principle amounts to jus cogens, the Court moved

beyond the Vienna Convention, asserting that "by its definition" and its development, jus cogens is not limited to treaty law. 117 The Court summarily concluded that nondiscrimination

isjus cogens, being "intrinsically related to the right to equal protection before the law, which, in turn, derives 'directly from the oneness of the human family and is linked to the essential

dignity of the individual. "' 18 The Court added that the principle belongs tojus cogens because the whole legal structure of national and international public order rests on it and it constitutes a fundamental principle that permeates all laws. '19 The effect of this declaration, according to the Court, is that all states are bound by the norm erga omnes.120

110 Id., para. 47. 111 Id.

2 Id.

113 Id.

114 Id. 115 Id., paras. 60, 110.

6 Id., para. 73. 117 Id., para. 99. In stating thatjus cogens has been developed by international case law, the Court wrongly cited

the ICJ Judgments in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Preliminary Objections, 1996 ICJ REP. 595 (July 11), and the Barcelona Traction, Light & Power Co. (Belg. v. Spain), Second Phase, 1970 ICJ REP. 3 (Feb. 5), neither of which discusses the subject.

118 Juridical Condition and Rights of the Undocumented Migrants, para. 100 (quoting Juridical Condition and Rights of the Child, Advisory Opinion, Inter-Am. Ct. Hum. Rts. (ser. A) No. 17, para. 45 (2002)).

19 Id., para. 101. 120 Id., para. 109.

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Another opinion that reflects strong judicial assertion of authority to denominate peremptory norms and give them broad effect is the judgment of the Court of First Instance of the European Union in the case of Kadi v. Council. 121 The issue concerned EC compliance with Security Council resolutions122 ordering states to freeze the funds and assets of individuals listed by the UN Sanctions Committee as sponsors of terrorist operations. Yassin Abdullah Kadi was listed as a person subject to the freeze.123 While many of the arguments centered on the legal authority for the various EC texts and the procedure by which they were adopted, probably the most significant aspect of the case concerned Kadi's contention that the Security Council resolutions did not confer the power on EC institutions to abrogate fundamental

rights. He asserted that his fundamental rights to a fair hearing, respect for property, and judicial remedies had been violated. The Council and Commission observed that their actions transposed into the Community legal order binding Security Council resolutions that the member states of the Community were obliged to follow, pursuant to UN Charter Article 25.

The Court opined that from the standpoint of international law, the obligations of the UN member states "clearly prevail" over every other obligation of domestic law or international treaty law,124 including, for those that are members of the Council of Europe, their obligations under the European Convention on the Protection of Human Rights and Fundamental Free- doms. The Court held that Charter Article 103 constitutes an exception to VCLT Article 30 and applies to successive treaties, as well as to earlier ones.125 Further, the primacy ofthe United Nations extends to resolutions of the Security Council adopted under Chapter VII.126

The Court concluded that the Community may not infringe the obligations imposed on its member states by the UN Charter nor impede their performance, and that in the exercise of its powers it is bound by its constituting treaty to adopt all the measures necessary to enable its member states to fulfill those obligations. Thus, the EC institutions have no autonomous discretion to alter the resolutions or review their lawfulness.

The Council and Commission then argued that, in that case, the Court lacked jurisdiction to review the legality of the EC regulations for conformity with fundamental rights because it would indirectly review the legality of the Security Council measures. The Court agreed that it could not review any determination of a threat to the peace and the measures required to maintain or reestablish peace and security, as such an undertaking would be incompatible with the UN Charter and VCLT Article 27. Indeed, "reference to infringements either of fundamental rights as protected by the Community legal order or of the principles of that legal order cannot affect the validity of a Security Council measure or its effect in the territory of the Com- munity. "27 Thus, the Court's judicial review, in principle, did not extend to the lawfulness of Council measures.128 Lest this conclusion call into question the entire framework of human

rights guarantees established in Europe since the end of World War II, the Court found an

exception to the notion of unreviewable and unlimited Security Council power:

121 Case T-315/01, Kadi v. Council (Eur. Ct. Justice Sept. 21, 2005). 122 SC Res. 1267, para. 4(b) (Oct. 15, 1999), 39 ILM 235 (2000); SC Res. 1333 (Dec. 19,2000), 40 ILM 509

(2001); SC Res. 1390 (Jan. 16, 2002), 41 ILM 511 (2002). 123 The Sanctions Committee designation was implemented by Commission and Council action. Commission

Reg. 2062/2001, 2001 O.J. (L 277) 25; Council Reg. 881/2002, 2002 O.J. (L 139) 9. 124 Kadi, paras. 181-83 (citing Article 103 of the UN Charter, quoted supra note 11). 125 Id., para. 183. 126 The Court notes that the Community is not directly bound by the Charter because it is not a member of the

United Nations, but on an agency theory concludes that the member states could not confer on the Community more powers than they possessed and therefore the Community also must comply. Id., paras. 192-95.

127 Id., para. 224. 128 Id., para. 225.

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None the less, the Court is empowered to check, indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus cogens, understood as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible. 29

This astonishing conclusion was rationalized by the Court's statement that the UN Charter itself "presupposes the existence of mandatory principles of international law, in particular, the

protection of the fundamental rights of the human person."130 The UN Charter also provides that the Security Council is to act in accordance with the purposes and principles of Charter Article 24(2). In effect, the Court claimed that the entire body of human rights law constitutes

jus cogens, referring to "the mandatory provisions concerning the universal protection of human rights, from which neither the Member States nor the bodies of the United Nations

may derogate because they constitute 'intransgressible principles of international customary law.'"'13 As a result, international law

permits the inference that there exists one limit to the principle that resolutions of the

Security Council have binding effect: namely, that they must observe the fundamental

peremptory provisions ofjus cogens. If they fail to do so, however improbable that may be, they would bind neither the Member States of the United Nations nor, in consequence, the Community.'32

One may suppose that each state, each court, and each international institution may determine whether or not this violation has occurred. Certainly, this Court did not hesitate to undertake such an analysis.

In a decision reminiscent ofMarbury v. Madison, the three rights invoked by Kadi were all

accepted asjus cogens, but none were found to have been violated by the resolutions and regulations. The consequences for individual rights were not positive:

[I]n circumstances such as those of this case, in which what is at issue is a temporary pre- cautionary measure restricting the availability of the applicant's property, the Court of First Instance considers that observance of the fundamental rights of the person concerned does not require the facts and evidence adduced against him to be communicated to him, once the Security Council or its Sanctions Committee is of the view that there are grounds concerning the international community's security that militate against it. 33

Those favoring human rights asjus cogens may feel that they have won the battle only to lose the war. For example, the lack of access to any tribunal to test the evidence or conclusions of the Sanctions Committee, that is, a lacuna in the judicial protection available to the applicant, "is not in itself contrary tojus cogens" because the traditional immunity from suit afforded international organizations and states "is inherent in that right as it is guaranteed byjus cogens."134

The Court's opinion and that of the Inter-American Court of Human Rights considerably shift lawmaking from states to international tribunals, which henceforth may be asked to assess human dignity and international public order to determine which norms have a superior status

129 Id., para. 226. Perhaps the Court was influenced by the opinion of Judge Lauterpacht in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo. (Serb. & Mont.)), supra note 104, where he asserted that the Security Council is bound byjus cogens norms. 1993 ICJ REP. at 440, para. 100.

130 Kadi, para. 288. 131 Id., para. 231. 132 Id., para. 230. 133 Id., para. 274. 134 Id., paras. 286, 288.

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that can override state consent (or lack thereof) and invalidate or deny effect to conflicting norms, including decisions of the UN Security Council. Neither court cited evidence to demonstrate that the norms met the test of Article 53, acceptance of the norms as peremptory by the international community of states as a whole. The Inter-American Court cited international instruments to find positive law on nondiscrimination and equality, but it appeared to elevate the norm to jus cogens status on the basis of its own logic and reasoning about essential human dignity.135 With the proliferation of international courts and growing caseload of each of them, the role of the international judiciary in this respect is likely to be increasingly important in the future. At least one author would approve this development, having suggested that the ICJ's full bench is well suited to determine the "international community's 'fundamental

values.''"36 Whether such lawmaking will be acceptable to the states subject to international law remains to be seen.

In its own jurisprudence, the Inter-American Commission on Human Rights has referred to the concept ofjus cogens several times, suggesting natural law as an additional source of obli-

gation. The Commission has declared the right to life, for example, to be a norm ofjus cogens

derived from a higher order of norms established in ancient times and which cannot be contravened by the laws of man or of nations. The norms ofjus cogens have been described by public law specialists as those which encompass public international order. . .. accepted ... as necessary to protect the public interest of the society of nations or to maintain levels of public morality recognized by them.137

In an opinion on the application of the death penalty to juvenile offenders in the United States, the Commission gave a more detailed account of its methodology for findingjus cogens norms.138 According to the Commission, developments in the corpus of international human

rights law relevant to interpreting and applying the American Declaration on the Rights and Duties of Man may be drawn from various sources of international law, including the provisions of other international and regional human rights instruments and customary international law, which covers those customary norms considered to form a part ofjus cogens. The Commission reiterated that the concept ofjus cogens derives from ancient law concepts of a

"superior order of legal norms, which the laws of man or nations may not contravene," "rules which have been accepted, either expressly by treaty or tacitly by custom, as being necessary to

protect the public morality recognized by them."'39 The Commission saw the principal dis-

tinguishing feature of these norms as their "relative indelibility," in that they constitute rules of customary law that "cannot be set aside by treaty or acquiescence but only by the formation of a subsequent customary rule of contrary effect."'40 More particularly, norms ofjus cogens cannot be avoided by being a persistent objector. These rules represent fundamental values such that violations are considered to shock the conscience of humankind; they therefore bind the international community as a whole, irrespective of protest, recognition, or acquiescence.

135 Analogous judicial reasoning by a majority of the U.S. Supreme Court interpreting the U.S. Bill of Rights to include rights of dignity and personal autonomy has generated considerable controversy. See Roper v. Simmons, 543 U.S. 551 (2005) (prohibition on juvenile executions); Lawrence v. Texas, 539 U.S. 558 (2003); Atkins v. Vir- ginia, 536 U.S. 304 (2002) (prohibition on execution of mentally retarded).

136 Christopher A. Ford, Adjudicating Jus Cogens, 13 WIS. INT'L L.J. 145, 145 (1994). 137 Victims of the Tugboat "13 de Marzo" v. Cuba, Case 11.436, Inter-Am. C.H.R., Report No. 47/96, OEA/

Ser.L/V/II.95, doc. 7 rev. 179 (1996). 138 Michael Domingues (United States), Case 12.285, Inter-Am. C.H.R., Report No. 62/02, OEA/Ser.L/V/

II.117, doc.1, rev.1 (2003). 139 Id., para. 49 (quoting Roach & Pinkerton v. United States, Case 9647, Inter-Am. C.H.R., Res. No. 3/87,

OEA/Ser.L/V/II.71 (1987)). 140 Id.

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The Commission proceeded to list the "[c]ommonly cited examples of rules of customary law that have attained the status of jus cogens norms": the prohibitions of genocide, slavery, forced disappearances, and torture or other cruel, inhuman, or degrading treatment or punishment. The Commission added without comment: "It has been suggested that a reliable

starting point in identifying those international legal proscriptions that have achievedjus cogens status is the list of rights that international human rights treaties render non-derogable."141 In

specific cases, the Commission would look for evidence of recognition of the indelibility of the norm by the international community as a whole. "This can occur where there is acceptance and recognition by a large majority of states, even if over dissent by a small number of states." 142 On the precise issues before it,

[t] he Commission considers that ... broad hemispheric adherence to the American Con- vention, includingArticle 4(5) thereof, constitutes compelling evidence ofa regional norm

repudiating the application of the death penalty to persons under 18 years of age even

amongst those states such as Guatemala, Jamaica and Grenada that, like the United States, have retained the death penalty.143

The International Criminal Tribunal for the Former Yugoslavia (ICTY), the first tribunal to discuss jus cogens, supports the existence of such norms and has declared the prohibition of torture as one of them:

Because of the importance of the values it protects, [the prohibition against torture] has evolved into a peremptory norm orjus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even "ordinary" customary rules. The most

conspicuous consequence of this higher rank is that the principle at issue cannot be der-

ogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.

... Clearly, thejus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community.144

The discussion had no bearing on the guilt or innocence of the person on trial, or on the bind-

ing nature of the law violated. It was not asserted that any treaty or local custom conflicted with the customary and treaty prohibition oftorture. The reference served a rhetorical purpose only. Similarly, an International Labour Organization report on a 1996 complaint against Myanmar for forced labor referred tojus cogens even though the state had long been a party to ILO Con- vention (No. 29) Concerning Forced or Compulsory Labour.145 The report's statement that the practice of forced labor violates ajus cogens norm appears intended to invite the criminal

prosecution of individuals using forced labor since it labeled the systematic practice of such labor a "crime against humanity."146

The Human Rights Committee addressedjus cogens in its General Comment No. 29 on states of emergency, issued on August 31, 2001.147 According to the Committee, the list of

141 Id. 42 Id., para. 50. 43 Id., para. 64.

144 Prosecutor v Furundiija, No IT-95-17/1-T, 11153-54 (Dec. 10, 1998). 145 ILO Convention (No. 29) on Forced or Compulsory Labour, June 28, 1930, 39 UNTS 55. 146

Report of the Commission of Inquiry on Forced Labour in Myanmar (Burma), 81 ILO OFF. BULL. (ser. B), Special Supp., para. 538 (1998).

147 UN Human Rights Comm., General Comment No. 29, States of Emergency (Article 4), UN Doc. CCPR/ C/21/Rev. /Add.11 (2001).

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nonderogable rights in Article 4(2) of the Covenant on Civil and Political Rights is related to, but not identical with, the content of peremptory human rights norms because, while some

nonderogable rights are included in Article 4 "partly as recognition of the[ir] peremptory nature," other rights not included also figure among peremptory norms.148 The Committee insisted that

States parties may in no circumstances invoke article 4 of the Covenant as justification for

acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages, by imposing collective punishments, through arbitrary dep- rivations of liberty or by deviating from fundamental principles of fair trial, including the

presumption of innocence.149

While this statement may appear to be adding new conditions to Article 4, in fact paragraph 1 explicitly provides that any measures taken by states in derogation of Covenant rights must not be "inconsistent with their other obligations under international law."150 Thus, the Com- mittee asserted that one test of the legitimacy of measures in derogation of Covenant rights can be found in the definition of certain violations as crimes against humanity.

The concept ofjus cogens norms has been pressed most strongly in the domestic courts of the United States, initially in an effort to avoid U.S. constitutional doctrine that considers treaties and custom equivalent to other federal law, allowing the president and Congress to enact U.S. law inconsistent with international law. Jus cogens obligations were asserted first in an effort to enforce the 1986 ICJ Judgment against the United States in the Nicaragua case.'51 Lawyers

argued that the constitutional precedents do not apply to norms ofjus cogens, which have a

higher status that binds even the president and Congress. The Court accepted the theory argu- endo, but held that compliance with a decision of the ICJ is not ajus cogens requirement.

Other domestic court cases involvingjus cogens fall into one of two categories. First are cases in which sovereign immunity has acted to shield defendants from civil lawsuits for damages. The issue has arisen most often in courts of the United States and the United Kingdom. In both forums lawyers argued that the foreign sovereign immunity law must be interpreted to include an implied exception to sovereign immunity for violations ofjus cogens norms. The argument relies on the idea of implied waiver, positing that state agreement to elevate a norm tojus cogens status inherently results in an implied waiver of sovereign immunity. Every court in these two

systems thus far has rejected the argument and upheld immunity, although some judicial pan- els have split on the issue.'52

In the case of former Chilean leader Augusto Pinochet Ugarte, the issue ofjus cogens arose in response to a claim of immunity from criminal prosecution. Among the many opinions in the case, the one by Lord Millett stated that "[i]nternational law cannot be supposed to have established a crime having the character of ajus cogens and at the same time to have provided

148 Id., para. 11. 149 Id. 150 ICCPR, supra note 13, Art. 4(1). 151 Comm. of U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d 929, 940 (D.C. Cir. 1988). 152 See, e.g., Siderman de Blake v. Republic of Arg., 965 F.2d 699 (9th Cir. 1992), cert. denied, 507 U.S. 1017

(1993); Yev. Zemin, 383 F.3d 620 (7th Cir. 2004), cert. denied, 2005 U.S. LEXIS 3351 (Apr. 18,2005); Sampson v. Fed. Republic of Germany, 250 F.3d 1145 (7th Cir. 2001); Hwang GeumJoo v.Japan, 332 F.3d 679 (D.C. Cir. 2003); Princz v. Fed. Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994); Kane v. Winn, 319 F.Supp.2d 162, 199 (D. Mass. 2004).

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an immunity which is co-extensive with the obligation it seeks to impose."153 Ultimately, however, the judgment did not rely onjus cogens to determine the issue because treaty law as implemented by UK law controlled the matter.

Four recent cases from different national courts demonstrate the confusion over jus cogens and its relationship to issues of immunity. In all of the cases the courts held that the underlying violations constituted breaches of norms ofjus cogens-two cases involved war crimes and two concerned torture- but the courts split evenly on whether a finding ofjus cogens violations overrides immunity. In cases from Greece and Italy, the respective supreme courts held that German crimes committed during World War II were not protected by sovereign immuni-

ty.'54 In contrast, an Ontario court of appeal and an English appellate tribunal held that the

jus cogens prohibition of torture does not override sovereign immunity.155 A second category of domestic law cases in which the nature of norms asjus cogens has been

asserted concerns cases filed pursuant to the U.S. Alien Tort Statute (ATS).156 Some of the

plaintiffs have asserted violations of norms ofjus cogens, often wrongly claiming that the landmark decision Filartiga v. Pena-Irala157 held torture to violate ajus cogens norm. But the federal

appellate court in that case held that official torture constitutes a violation of the law of nations and never mentioned the doctrine ofjus cogens norms. In fact, no ATS case has turned on the character of the violated norm as jus cogens or "ordinary" custom.

Issues ofjus cogens have arisen in Switzerland in a unique fashion. In 1966 both chambers of the Swiss Federal Parliament invalidated a popular initiative that proposed a constitutional amendment overriding the prohibition of refoulement.158 The Swiss Federal Council declared

non-refoulement a peremptory norm that the states could not violate. In 1999 a new constitutional provision, Article 139 on people's initiatives, explicitly barred the use of the initiative

process to adopt a constitutional amendment in violation ofjus cogens norms.159 In two extradition decisions, the Swiss Federal Supreme Court also overrode treaty provisions on the basis of higher norms. In 1983 a request by Argentina was denied, mainly in reliance on the Euro-

pean Convention on Human Rights, but also on the prohibition of torture as a "general principle of law."160 In 1985 the Court rejected a Tunisian request on the basis that the prohibition of torture and refoulement are elements of the international public order.'61 In both cases there were applicable extradition treaties. According to a commentator, "[O]ne can conclude that the recognition of a hierarchy of norms in international law is increasingly developing outside

153 Regina v. Bow Street Metro. Stipendiary Magistrate, Exparte Pinochet (No. 3), [1999] 2 All E.R. 97, 179, [2000] 1 A.C. 147 (H.L.).

154 Prefecture ofVoiotia v. Fed. Republic of Germany, Areios Pagos [Supreme Court] 11/2000 (Greece); Ferrini v. Fed. Republic of Germany, Cass., sez. un., 6 Nov. 2003, n.5044, 87 RIVISTA DI DIRITTO INTERNAZIONALE 539 (2004). The Italian case is discussed in Pasquale De Sena & Francesca De Vittor, State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case, 16 EUR. J. INT'L L. 112 (2005).

155 Bouzari v. Iran, C38295, [2004] O.J. 2800 (Ont. Ct. App. June 30, 2004); Jones v. Saudi Arabia, [2004] EWCA (Civ) 1394, [1].

156 28 U.S.C. ?1350 (2000) ("The [federal] district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."). The ATS is part of the Judiciary Act of 1789, ch. 20, ?9(b).

157 Filartiga v. Pefia-Irala, 630 F.2d 876 (2d Cir. 1980). The only U.S. Supreme Court decision to consider issues arising under the ATS, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), also failed to mention jus cogens.

158 See de Wet, supra note 76, at 101 n. 15. The proposed amendment would have provided for summary depor- tation of illegal immigrants.

159 Bundesverfassung der Schweizerischen Eidgenossenschaft [Constitution], April 18, 1999, Volksinitiative auf Teilrevision der Bundesverfassung, Art. 139.

160 Bundesgericht [BGer] [Federal Court], Nov. 3, 1982, 108 Entscheidungen des Schweizerischen Bundes- gerichts [BGE] lb 408, 412 (Switz.).

161 BGer, Apr. 17, 1985, 111 BGE Ib 138, 142.

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the scope of treaty law, with direct consequences for the interaction between national and international law."162

The recently completed ILC articles on state responsibility and accompanying commentary take the position that peremptory norms exist, urging that the concept has been recognized in international practice and in the jurisprudence of international and national courts and tribunals.163 The commentary notes that the issue of hierarchy of norms has been much debated, but finds support forjus cogens in the notion of erga omnes obligations and the inclusion of the

concept of peremptory norms in the Vienna Convention on the Law of Treaties. The articles propose a hierarchy of the consequences of various breaches of international law.

Article 41 sets forth the particular consequences said to result from the commission of a serious breach of a peremptory norm. The text imposes positive and negative obligations upon all states. With respect to the first, " [w]hat is called for in the face of serious breaches is a joint and coordinated effort by all States to counteract the effects of these breaches."164 The commentary concedes that the proposal "may reflect the progressive development of international law" in an effort to strengthen existing mechanisms of cooperation.'65 The core requirement, to abstain from recognizing consequences of the illegal acts, finds more support in state practice, with precedents including rejection of the unilateral declaration of independence by Rhode-

sia,166 the annexation of Kuwait by Iraq,167 and the South African presence in Namibia.'68 Article 41 of the articles on state responsibility, however, extends the duty to combat and not condone illegal acts beyond the requirements of the UN Charter.

Toward the Future

The concerns raised by most proponents of jus cogens are serious and the rationale that

emerges from the literature is one of necessity: the international community cannot rely upon a consensual regime to address many modern international problems.169Jus cogens is needed because the modern interdependence of states demands an international ordrepublic contain-

ing rules that require strict compliance. The ILC commentary to the articles on state responsibility favors this position, asserting that peremptory rules exist to "prohibit what has come to be seen as intolerable because of the threat it presents to the survival of States and their peoples and the most basic human values."170 The suggested urgent need to act fundamentally challenges the consensual framework of the international system by seeking to impose on dis-

senting states obligations that the "international community" deems fundamental. State practice has yet to catch up fully with this plea of necessity.

Nonetheless, the emergence of international criminal law has led some to see a strengthening in application ofjus cogens norms. This possibility necessitates consideration of the nature of

162 De Wet, supra note 76, at 112. 163 State Responsibility Articles, supra note 103, at 282, Art. 40 Commentary, para. 2. 164 Id. at 287, Art. 41 Commentary, para. 3. 165 Id. 166 SC Res. 216 (Nov. 12, 1965). 167 SC Res. 662, para. 1 (Aug. 9, 1990), 29 ILM 1327 (1990) (declaring that the annexation of Kuwait had "no

legal validity, and is considered null and void," and calling on the international community not to recognize the annexation and to refrain from any action or dealing that might be interpreted as a recognition of it).

168 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)

Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ REP. 16, para. 126 (June 21). 169

Necessity has long been seen as underlying general international law orjusgentium on which positive law is based. SeeRoberto Ago, PositiveLawandInternationalLaw, 51 AJIL 691, 693 n.9 (1957) (citing Christian Wolff).

170 State Responsibility Articles, supra note 103, at 283, Art. 40 Commentary, para. 3.

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international crimes and the relationship of this body of law to doctrines of obligations ofjus cogens and obligations erga omnes.'71 The ICJ was the first to identify the category of obligations erga omnes in dicta in the Barcelona Traction case.172 The characterization of an obligation as one owed the international community as a whole could derive from the fact that such obli-

gations generally aim at regulating the internal behavior of a state, such as in the field of human

rights, and thus no other state is likely to be materially affected by a breach. Consequently, the

principle of effectiveness supports broad standing, because without it violations could not be

challenged. However, the rationale stated by the ICJ for recognizing this category of obligations appears more substantive: that "[i]in view of the importance of the rights involved, all States can be held to have a legal interest in their protection."'73 This statement suggests that

obligations erga omnes have specific and broad procedural consequences because ofthe substantive importance of the norms they enunciate. In addition, the fact that all states can complain of a breach may make it more likely that a complaint will be made following commission of a wrongful act, suggesting that a higher priority is accorded to these norms even if they are not considered substantively superior. The ICJ's examples of such obligations included the out-

lawing of aggression and genocide and protection from slavery and racial discrimination. Like obligations erga omnes, international crimes are so designated because the prohibited

acts are deemed of such importance to the international community that individual criminal

responsibility should result from their commission.174 Unlike obligations erga omnes, however, international criminal norms can pose problems of relative normativity. It has been clear since the Nuremberg trials that conforming to or carrying out domestic law is no excuse for breach of international criminal law; it would seem plausible as well, if unlikely to arise in practice, that a defense based on carrying out international legal obligations, such as those contained in a bilateral treaty, would fail if those obligations contradict the requirements of criminal law.'75 In this respect, norms of criminal law would be given supremacy over other international law in practice.

Other aspects of the interrelationship of these categories of norms and the sources that create them should be noted. First, neither the designation of international crimes nor that of obli-

gations erga omnes involves a purported new source of law; crimes are created and defined

through the conclusion of treaties and obligations erga omnes by treaty and customary international law. Both, however, may emerge from a global recognition of fundamental moral or ethical values. Second, it appears logical that all international crimes are obligations erga omnes because the international community as a whole identifies and may prosecute and punish the commission of such crimes. The reverse, however, is not the case. Not all obligations erga omnes have been designated as international crimes. Racial discrimination, for example, is cited as an

obligation erga omnes but is not included among international crimes.

171 For a discussion of the distinctions, see Teraya Koji, Emerging Hierarchy in International Human Rights and

Beyond: From the Perspective ofNon-derogable Rights, 12 EUR. J. INT'L L. 917 (2001). On obligations erga omnes, see ANDRE DE HOOGH, OBLIGATIONS ERGA OMNES AND INTERNATIONAL CRIMES (1996); MAURIZIO RAGAZZI, THE CONCEPT OF INTERNATIONAL OBLIGATIONS ERGA OMNES (1997).

172 Barcelona Traction, Light & Power Co. (Belg. v. Spain), Second Phase, 1970 ICJ REP. 3, para. 33 (Feb. 5). 173 Id.; see also East Timor (Port. v. Austl.), 1995 ICJ REP. 90, para. 29 (June 30); Application of the Convention

on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Preliminary Objections, 1996 ICJ REP. 595, para. 31 (July 11).

174 The collective nature of the state as subject of international law makes imposition of state criminal responsibility problematic. Although the International Law Commission included a provision on state crimes in early ver- sions of its articles on state responsibility, the provision was eventually excluded.

175 The treaty itself might be considered void as a violation of peremptory norms if it required or authorized the commission of an international crime.

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Among those acts designated as international crimes, there appears to be no hierarchy. The ICTY declared in the Tadic judgment that "there is in law no distinction between the serious- ness of a crime against humanity and that of a war crime."176

III. SOFT LAW

States inside and outside international organizations now often place normative statements and agreements in nonlegally binding or political instruments such as declarations, resolutions, and programs of action. These instruments may make it easier to press dissenting states into

conforming behavior because international law permits states to use political pressure to induce others to change their practices; generally, however, states cannot demand that others conform to legal norms the latter have not accepted. Nonbinding commitments may be entered into

precisely to reflect the will of the international community to resolve a pressing global problem over the objections of the one or few states causing the problem, while avoiding the doctrinal barrier of their lack of consent to be bound by the norm.177

The increasing use of nonbinding normative instruments in several fields of international law is evident. There is no accepted definition of "soft law," but it usually refers to any international instrument other than a treaty that contains principles, norms, standards, or other statements of expected behavior. The term "soft law" is also sometimes employed to refer to the weak, vague, or poorly drafted content of a binding instrument;178 it was this type of norm that Prosper Weil had in mind in his article on relative normativity.179 In fact, the term "soft law" seems more appropriate for the more hortatory or promotional language of certain treaty provisions than for instruments concluded in nonbinding form, because treaties are legally binding even if specific commitments are drafted in general or weak terms.

Recently, supervisory organs have been created to oversee compliance with nonbinding norms. The Commission on Sustainable Development, for example, supervises the implementation ofAgenda 21, the plan of action adopted in 1992 at the Rio Conference on Environment and Development. In other instances, states have been asked to submit reports on compliance with declarations and programs of action, in a manner that mimics, if not duplicates, the mechanisms utilized in treaties.

Some scholars have distinguished hard law and soft law by stating that breach of law gives rise to legal consequences, while breach of a political norm gives rise to political consequences. Such a distinction is not always easy to make. Testing normativity based on consequences can be confusing since breaches of law may give rise to consequences that may be politically motivated. A government that recalls its ambassador can either be expressing political disapproval

176 Prosecutor v. Tadic, Judgment in SentencingAppeals, No. IT-94-1-A, 169 (Jan. 26,2000). For a criticism of this view and discussion of the conflicting practice of the ICTY, see Allison Marston Danner, Constructinga Hier- archy of Crimes in International Criminal Law Sentencing, 87 VA. L. REV. 415 (2001).

177 The UN General Assembly's actions on drift-net fishing were directed at members and nonmembers of the United Nations whose fishing fleets decimated dwindling fish resources through use of the drift-net "walls of death." The international community made clear its resolve to outlaw drift-net fishing and enforce the ban, albeit it was not contained in a legally binding instrument. Soviet international lawyer S. B. Krylov argued that the decisions of international organizations could be ofgreat importance as a source of international law, provided that the decisions were so recognized, accepted, and applied by the membership at large. Krylov also held this view respecting decisions of the PCIJ. See Triska & Slusser, supra note 81, at 710.

178 E.g., of the International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3, Article 2(1) of which reads that each state party "undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized ... by all appropriate means, including particularly the adoption of legislative measures."

179 Weil, supra note 2, at 414.

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of another state's policy on an issue, or be penalizing noncompliance with a legal norm. Ter-

minating foreign assistance may also be characterized either way. Even binding UN Security Council resolutions based on a threat to the peace do not necessarily depend upon a violation of international law.

With respect to "relative normativity," scholars debate whether binding instruments and

nonbinding ones are strictly alternative or whether they form two ends of a continuum from

legal obligation to complete freedom of action, making some such instruments more binding than others. If and how the term "soft law" should be used depends in large part on whether one adopts the binary or continuum view of international law. To many, the line between law and not-law may appear blurred. Treaty mechanisms are including more "soft" obligations, such as undertakings to strive to cooperate. Nonbinding instruments, in turn, are incorporat- ing supervisory mechanisms traditionally found in hard-law texts. Both types of instrument

may prescribe compliance procedures that range from soft to hard. Some case law refers to UN resolutions as having "a certain legal value" but one that "differs considerably" from one resolution to another.'80

Nonbinding norms have complex and potentially large impact on the development of international law. Customary law, for example, one of the two main sources of international legal obligation, requires compliance (state practice) not only as a result of the obligation, but as a constitutive, essential part of the process by which the law is formed. In recent years, nonbind-

ing instruments have sometimes provided the necessary statement of legal obligation (opinio juris) to evidence the emergent custom and have assisted in establishing the content of the norm. The process of drafting and voting for nonbinding normative instruments may also be considered a form of state practice.

The reality seems to be a dynamic interplay between soft and hard obligations similar to that which operates between international and national law. Indeed, soft law rarely stands in iso- lation; instead, it is used most frequently either as a precursor to hard law or as a supplement to a hard-law instrument. Soft-law instruments often serve as an authoritative way to allow

treaty parties to resolve ambiguities in a binding text or fill in gaps. This function is part of an

increasingly complex international system with variations in forms of instruments, means, and standards of measurement that interact intensely and frequently, with the common purpose of regulating behavior within a rule-of-law framework. The development of complex regimes is particularly evident in the international management of commons areas, such as the high seas and Antarctica, and in ongoing intergovernmental cooperative arrangements. For the latter, the memorandum of understanding has become a common form of undertaking, perhaps "motivated by the need to circumvent the political constraints, economic costs, and legal rigid- ities that often are associated with formal and legally binding treaties."181

From the perspective of state practice, resolutions, codes of conduct, conference declarations, and similar instruments are apparently not viewed as law, soft or hard, albeit they may be related to or lead to law in one manner or another.182 States and other actors generally draft and agree to legally nonbinding instruments advertently, knowingly. They make a conscious

180 Texaco Overseas Petroleum Co. & Cal. Asiatic Oil Co. v. Libyan Arab Republic (award of Jan. 19, 1977), 17 ILM 1, 28-29 (1978), 53 ILR 389.

181 JOHNSTON, supra note 9, at xxxiv. 182 See, for example, the decision adopted by the General Council of the WTO on August 1, 2004, containing

frameworks and other agreements designed to focus the Doha round of negotiations: "The General Council agrees that this Decision and its Annexes shall not be used in any dispute settlement proceeding under the [Dispute Set- tlement Understanding] and shall not be used for interpreting the existing WTO Agreements." Doha Work Pro- gramme: Decision Adopted by the General Council on 1 August 2004, para. 2, available at <http://www.wto.orgl english/tratop_e/dda_e/draft_text_gc_dg_31july04_e.htm>.

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decision to have a text that is legally binding or not. In other words, for practitioners, governments, and intergovernmental organizations, there is not a continuum of instruments from soft to hard, but a binary system in which an instrument is entered into as law or not-law. The not-law can be politically binding or morally binding, and expectations of compliance with the norms contained in the instrument can be extremely strong, but the difference between a

legally binding instrument and one that is not appears well understood and acted upon by government negotiators. Although a vast amount of resolutions and other nonbinding texts includes normative declarations, so-called soft law is not law or a formal source of norms. Such instruments may express trends or a stage in the formulation of treaty or custom, but law does not come with a sliding scale of bindingness, nor does desired law become law by stating its

desirability, even repeatedly. The first category posits that nonbinding norms precede binding ones. It is evident that

compliance with nonbinding norms can lead to the formation of customary international law. In recent years, nonbinding instruments have sometimes provided the necessary statement of

legal obligation (opiniojuris) to precede or accompany state practice, assisting in establishing the content of the norm.183

The adoption of nonbinding normative instruments also can and often does lead to the codification of similar or virtually identical norms in subsequent binding agreements. Indeed, the

process of negotiating and drafting nonbinding instruments can greatly facilitate the achieve- ment of the consensus necessary to produce a binding multilateral agreement. In the human

rights field, nearly all recent multilateral conventions were preceded by the adoption of a non-

binding declaration. In recent environmental law, this sequence of events produced the Rot- terdam Convention on Prior Informed Consent.'84

Nonbinding instruments also act interstitially to complete or supplement binding agreements. Sometimes this progression is foreseen in the agreement itself; for example, the Bonn Convention on Migratory Species of Wild Animals,'85 the Antarctic Treaty'86 regime, and

agreements of the International Atomic Energy Agency on nonproliferation of nuclear weapons.187 In other instances, the nonbinding accords may appear relatively independent and free-

standing, but upon examination make reference to existing treaty obligations, as, for exam-

ple, with the Helsinki Accords that led to the Organization for Security and Co-operation in Europe (still lacking a treaty basis) and the Zangger Committee for multilateral weapons control.

Another group of nonbinding instruments was adopted by states parties with a view to

authoritatively interpreting the obligations contained in treaty provisions. Examples include the Inter-American and Universal Declarations of Human Rights, as they relate to the Charters of the Organization of American States and the United Nations, and the more recent ILO Dec- laration on Fundamental Principles and Rights at Work.'88 One could add the general comments of various human rights treaty bodies, albeit the interpretation is accomplished by an

independent treaty body conferred by that authority and not by the states parties directly.

183 E.g., GA Res. 46/215 (Dec. 20, 1991) (banning large-scale pelagic drift-net fishing). 184 Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in

International Trade, Sept. 11, 1998, 30 ILM 1 (1999). 185 Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979, 19 ILM 15 (1980). 186 Antarctic Treaty, Dec. 1, 1959, 12 UST 794, 402 UNTS 71. 187 International Atomic Energy Agency, The Structure and Content of Agreements Between the Agency and

States Required in Connection with the Treaty on the Non-proliferation of Nuclear Weapons, IAEA Doc. INFCIRC/153 (May 1971).

188 ILO, Declaration on Fundamental Principles and Rights at Work (June 1998), available at <http:/ www.ilo.org/public/english/standards/index.htm>.

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States and other actors adopt nonbinding normative instruments for a variety of reasons. In some cases that is all they can do in the given setting. International organizations in which much of the modern standard setting takes place generally do not have the power to adopt bind-

ing texts. In addition, nonstate actors can sign on, participate, and be targets of regulation, which is much more difficult to do with treaties. Nonbinding instruments are faster to adopt, easier to change, and more useful for technical matters that may need rapid or repeated revision. These attributes are particularly important when the subject matter may not be ripe for treaty action because of scientific uncertainty or lack of political consensus. Finally, nonbinding texts serve to avoid domestic political battles because they do not need ratification.

The considerable recourse to and compliance with nonbinding norms may represent a

maturing of the international system. The ongoing relationships between states and other actors, deepening and changing with globalization, create a climate that may diminish the felt need to include all expectations between states in formal legal instruments. Not all arrangements in business, neighborhoods, or families are formalized, but are often governed by informal social norms and voluntary, noncontractual understandings. Nonbinding norms and informal social norms can be effective and offer a flexible and efficient way to order responses to common problems. They are not law and they do not need to be in order to influence conduct in the desired manner.

V. CONCLUSION

The growing complexity of the international legal system is reflected in the increasing variety of forms of commitment adopted to regulate state behavior in regard to an ever-growing number of transnational problems. The various international actors create and implement a range of international commitments, some of which are in legal form, some of which are claimed to have supremacy over other norms, and some of which are contained in nonbinding instruments.

In practice, conflicts between norms and their interpretation are probably inevitable in the

present, largely decentralized international legal system where each state is entitled initially and

equally to interpret for itself the scope of its obligations and the implementation those obli-

gations require. The interpretations or determinations of applicable rules may vary consider-

ably, making all international law somewhat relative, in the absence of institutions competent to render authoritative interpretations binding on all states.

There are also dangers of relative normativity alluded to by Professor Weil in 1983 and other hazards that have surfaced since that time. Many authors and litigators have exhibited a pronounced inflationary tendency: nonlaw becomes soft law, soft law becomes hard law, and various customary and treaty norms becomejus cogens. It is even possible, according to some, that

nonbinding instruments, such as General Assembly resolutions, can identify the supreme norms ofjus cogens. As Weil put it, there has been a "blurring of the normativity threshold," a "slithering from the customary rule to the general rule, then from the general rule to the universal rule."'89 Resolutions of international organizations are treated in a variable manner,

depending more on their content than on their form and process of adoption. At the other end of the spectrum, the notion ofjus cogens has been invoked to such a point in publications and

litigation in the United States that it risks devaluing "ordinary" customary international law.

Notably, in some pleadings in Alien Tort Claims cases defendants and even the United States

government asserted that a claim could not lie under the law of nations unless it was considered

189 Weil, supra note 2, at 415, 437.

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jus cogens. Fortunately, this misconstruction of the term "law of nations" was not adopted by the United States Supreme Court in Sosa v. Alvarez-Machain.l90

Yet, in looking forward, Jonathan Charney convincingly wrote that the international com-

munity "faces an expanding need to develop universal norms to address global concerns."191 Universal norms are a matter of necessity: certain problems threaten the well-being of all states and must be addressed by law that is binding on all states "regardless of any one state's dispo- sition."192 Professor Charney noted that peremptory norms of international law override the

treaty-making will of states as well as persistent objections. Indeed,jus cogens "is distinguished from ordinary international law because it is based on natural law propositions applicable to all legal systems, all persons, or the system of international law."193 He identified a major locus for articulation of these norms in multilateral forums such as the General Assembly, which can devise, launch, refine, and promote general international law to deal with the gravest threats to the earth and humanity as a whole. He thus saw a role for soft-law texts in establishing consensus and crystallizing new rules that may be rapidly absorbed into international law, even

becoming "universal" law. The extent to which the system has moved, and may still move, toward the imposition of

global public policy on nonconsenting states remains highly debated, but the need for limits on states' freedom of action seems to be increasingly recognized. International legal instruments and doctrine now often refer to the "common interest of humanity"'94 or "common concern of mankind" to identify broad concerns that could form part of international public policy. References are also more frequently made to "the international community" as an entity or authority of collective action. 95 In addition, multilateral agreements increasingly contain

provisions that affect nonparty states, either by providing incentives to adhere to the norms, or by allowing parties to take coercive measures that in practice require conforming behavior of states that do not adhere to the treaty. The UN Charter itself contains a list of fundamental

principles196 and in Article 2(6) asserts that these may be imposed on nonparties if necessary to ensure international peace and security. Perhaps the most significant positive aspect of this trend toward normative hierarchy is its reaffirmation of the link between law and ethics, in which law is one means to achieve the fundamental values ofan international society. It remains to be determined, however, who will identify the fundamental values and by what process.

190 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). 191

Charney, supra note 7, at 529. 192 Id. at 530. 93 Id. at 541.

194 See LOS Convention, supra note 16, Art. 137(2); Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, pmbl., para. 2, 18 UST 2410, 610 UNTS 205.

195 See, e.g., VCLT, supra note 4, Art. 53; LOS Convention, supra note 16, Arts. 136-37. 196 UN Charter Art. 2.

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Ierarhia Normativa DIP